Flewellen v. Flewellen

Fish, J. The record in this case shows that Henry Elewellen sought, as a laborer, to foreclose liens, in the city court of Eorsyth, against Ed. Elewellen and certain described property of the latter; that upon the trial of the issues raised by defendant’s counter-affidavit the plaintiff testified, in detail, to the truth of every averment in'his affidavit; that at the conclusion of plaintiff’s testimony, and in the absence of any demurrer to his affidavit, the court, on its own motion, awarded a nonsuit, upon the ground “that plaintiff had not made out such a case, either by his pleadings or his evidence, as Would authorize the issuance of a laborer’s lien under the statute; ” that the plaintiff excepted to this ruling by certiorari to the superior court; and that the certiorari was there overruled. Error is assigned in the bill of exceptions upon the overruling of the certiorari. The only question necessary to be decided is controlled by the unanimous ruling made by this court in Beeves v. Jackson, 113 Ga. 182 (which was followed in Strouse v. Kelly, Ib. 575), where it was held: “A motion to nonsuit presents the single [404] question whether or not the evidence introduced in behalf of the plaintiff, assuming it to be true, proves his case as laid.” Of course the judge of the city court was not authorized, on his own motion, to award a nonsuit in a case where he could not have legally done so had the defendant moved for one. Whether the averments in the plaintiff’s affidavit were sufficient to show that, under the statute, he was entitled to laborer’s liens, and was properly proceeding to foreclose them, could not be determined on a motion to nonsuit; for, as Judge Bleckley remarked in Anderson v. Pollard, 62 Ga. 51, “such a motion is aimed at the evidence as compared with, what the declaration is; not at the declaration as compared with, what it ought to be.” In each of the cases cited supra from 113 Ga., it was apparent that the judge, in sustaining the motion tononsuit, based his ruling upon the idea'that under the facts alleged and proved by the plaintiff he did' not have a cause of action; and this court reversed such ruling, holding in effect that even if no cause of action was, as matter of law, set forth in the petition, the court erred in refusing to allow the case to go to the jury. In other words, the trial judge undertook to give the defendant the benefit of a contention not made, which might have been well taken if properly presented for determination; and this court, without conceding the merits of such contention, held that it was improper for the judge to turn the plaintiff out of court on a ground which, however meritorious in the abstract, was not relied on by the defense,, or in any manner raised. See, in this connection, Roberts v. Keeler, 111 Ga. 181 (6); Phillips v. So. Ry. Co., 112 Ga. 197 (3); Eaves v. State, 113 Ga. 749 (6); Bray v. Chatta., R. & S. R. Co., Id. 308; Civil Code, § 5049. In the present case the uncontradicted testimony of the plaintiff showed that every averment in his affidavit-for foreclosure was true. Manifestly, therefore, the judge of the city court should not have awarded a nonsuit. The certiorari should have been sustained, and the judge of the superior court erred in overruling the same. Judgment reversed. All the Justices concurring.