Opinion
36056.
DECIDED APRIL 4, 1956. REHEARING DENIED APRIL 19, 1956.
Trover, Before Judge Henson. Fulton Civil Court. December 5, 1955.
Emmett O. Dobbs, Jr., John I. Hynds, for plaintiff in error.
Currie McGhee, Glover McGhee, contra.
1. There is no procedure authorizing a claim to be filed in a trover case, but where such procedure is followed in the trial court without any objection on the part of the plaintiff, and where the defendant has filed an answer disclaiming any title to the property, but alleging that the party filing the claim is the real owner of the property, the issue then tried, as to the ownership of the property, is between the plaintiff and the claimant. See, in this connection, Grizzard v. Trammell, 72 Ga. App. 50 ( 32 S.E.2d 910).
2. In the present case, where the claimant failed to file any motion for new trial within the same term at which the verdict was rendered and not until 32 days after the verdict complained of, it cannot be said that the claimant filed a motion for new trial within the time provided by Code § 70-301, as amended by the Act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 445; Code, Ann. Supp., § 70-301), and therefore the judgment of the trial court denying such motion for new trial as to the claimant will not be disturbed.
3. The motion to dismiss the bill of exceptions as to the defendant Baker is without merit and must be denied.
4. The verdict of the jury finding hire for the plaintiff was without evidence to support it, inasmuch as the evidence demanded a verdict that the defendant Baker had never been in possession of the automobile, and such a verdict is not recoverable against a claimant who has done nothing more than file a statutory claim. Therefore, the trial court erred in denying the motion for new trial of the defendant Baker, and the case is remanded to the trial court for a new trial as to the hire only.
Judgment affirmed in part and reversed in part. Felton, C. J., and Quillian, J., concur.
DECIDED APRIL 4, 1956 — REHEARING DENIED APRIL 19, 1956.
Edgar W. Jennings brought an action in trover to recover a described automobile from J. G. Davis and E. L. Cole, trading as Best Motor Company, and J. D. Baker. The automobile was seized by a deputy marshal, and thereafter J. D. Baker, the only defendant served, filed an answer disclaiming any interest or title in the automobile, but alleging that E. E. Robinson had title to the automobile. Later E. E. Robinson filed a claim to the automobile, and the plaintiff did not except to this practice. On the trial of the case, the jury returned a verdict for the plaintiff. The defendant filed a motion for new trial on the usual grounds on October 17, 1955, the same day the verdict was rendered for the plaintiff. On November 18, 1955, the defendant Baker and the claimant Robinson filed what is purported to be an amendment to the original motion for new trial. The trial court denied the motion for new trial as amended, and to this judgment the defendant Baker and the claimant Robinson, in the same bill of exceptions, except.