Towson v. Horn

Hines, J. 1. The defendant in error moves to dismiss the writ of error, because the sheriff and the defendant in the trover suit are necessary parties, but are not parties to the bill of exceptions. In the turn which the ease finally took, and as no judgments were rendered against these parties, they were nominal parties, and the bill of exceptions will not be dismissed because they are not made parties. DeVaughn v. Byrom, 110 Ga. 904 (36 S. E. 267); Civil Code (1910), § 6176; Weaver v. Bank of Bowersville, 146 Ga. 142 (90 S. E. 864). 2. The first six grounds of the amendment to the motion for new trial complain of the failure of the court to state to the jury certain, contentions of the plaintiff. While the statement of these contentions was meager, it was sufficient to present to the jury the essential contentions of the plaintiff; and. if a fuller statement of these contentions was desired, written requests upon the subject should have been preferred. Wooten v. Weston, 157 Ga. 421 (4) (121 S. E. 806). 3. In the seventh special ground of his motion for new trial the plaintiff complains of the failure of the court to instruct the jury as to the measure of damages in ease they should find that the plaintiff cut the timber in dispute in good faith. The plaintiff claimed title to this timber on the ground that he cut it on land to which he held title. He further contended that, if he cut this timber upon land to which the defendant had title, he did so in good faith. While the trial judge stated to the jury this contention of the plaintiff, he wholly failed to give to the jury any instructions as to the amount [698] •which the defendant -would be entitled to recover if this contention of the plaintiff was found by them to be true. The defendant recovered the proceeds of timber cut and carried away by the plaintiff. If the latter was an unintentional or innocent trespasser, the defendant could recover only the value of the property at the time of conversion, less the value added thereto by the plaintiff in cutting and preparing this timber for market. Civil Code (1910), § 4515. Where in an equitable proceeding the defendant seeks to recover the proceeds of such property, he would be entitled to recover such proceeds less such amount thereof as represents the value added .to the timber by the plaintiff in cutting and preparing the same for the market. It was the duty of the court to charge the jury the law as to the measure of damages, and failure to do so was error requiring the grant of a new trial. Central of Ga. Ry. Co. v. Hughes, 127 Ga. 593 (56 S. E. 770) ; Central of Ga. Ry. Co. v. Madden, 135 Ga. 205 (69 S. E. 165, 3 L. R. A. (N. S.) 813, 21 Ann. Cas. 1077). No. 4877. July 15, 1925. 4. Counsel for the plaintiff expressly abandons the 13th and 14th grounds of the amendment to the motion for new trial. 5. The assignments of error in the other grounds of this amendment are ■without merit; and as we grant a new trial, we express no opinion upon the evidence. Judgment reversed. All the Justices concur. Ira 8. Chappell and L. L. Porter, for plaintiff. M. H. Blachshear, for defendant.