Clark v. Fee

Blandeord, Justice. A verdict having been rendered in the court below against the defendant, he moved the court for a new trial upon several grounds, which was refused by the court. The first ground of error assigned is, that the court admitted in evidence the answer of Fee to a certain in [12] terrogatory, the interrogatory being: “Examine this account” (the account being stated) “and state whether the same is just, due, correct and unpaid.” The objection made was, that the interrogatory was leading, and intended to elicit a general answer that could be nothing more than a conclusion of law. We do not think there is anything in this ground. The account being exhibited to the witness, the question was allowable in the discretion of the trial court. The second ground of the motion is almost identical with the first. The third ground of the motion is, that the verdict is contrary to the evidence, and without evidence to support it. An examination of the testimony in the case shows, not only that the verdict was not without evidence to support it, but that the evidence was so strong as to require the verdict. The fifth ground, of the motion complains of error because the court'charged the jury: “If you believe from the evidence that the goods were sold and delivered by the plaintiff to the defendant, and the charges therefor are reasonable and just, you should consider that the account has been established, and that the plaintiff is entitled to recover.” This charge was more favorable to the plaintiff in error than the evidence warranted, the evidence being that the goods were ordered from the defendant in error by the plaintiff in error through a broker, and were purchased through the broker at a stated sum; were received by the plaintiff’ in error upon an invoice furnished by the defendant in error, and the same were sold by the plaintiff in error. It is further alleged that the court erred in charging the jury: “An appeal is frivolous and intended for delay only when the appeal is entirely without merit and entered merely to postpone the creditor in the collection of his debt.” We think this is a correct state [13] ment of the law as to a frivolous appeal. See Hartridge v. McDaniel, 20 Ga. 398, 399 ; Gilmore v. Wright, 20 Ga. 198 ; Garrison v. Wilcoxson, 11 Ga. 157; McMillan v. Lawrence, 25 Ga. 192. These embrace all the errors eomplainejl of in the motion for a new trial. Looking at the whole record, this court is forced to the conclusion that the ease was brought here for delay only. The judgment of the court below is affirmed with ten per cent, damages assessed upon the principal sum recovered. Judgment affirmed.