Screws v. Anderson

LuMPKiN, J.

(After stating the facts.) 1,2. A ground of a motion for a new trial, which alleges error on the part' of the court in refusing to let two named witnesses state “what the whole services of the attorney for defendant in illegality are worth in the case up to date of trial and including the same,” without stating what such testimony would have been, or that the judge was informed of what was expected to be proved, can not be considered. Grant v. Noel, 118 Ga. 258(2); Freeman & Turner News Co. v. Mencken, 115 Ga. 1017. For the like reason, the ground of the motion for a new trial alleging error in the exclusion of a written transfer from Mrs. Screws to Sapp can not be considered, because the evidence excluded is not set out in the motion for a new trial.

3. The court charged that the transfer of an execution must be in writing in order to put the legal title in the transferee and authorize him to proceed in his own name; and this was clearly correct. Civil Code, §3682; Anderson v. Baker, 60 Ga. 599.

4. One ground of the motion for a new trial is, because two of the jurors were disqualified by reason of relationship to Mrs. Screws, being her second cousins, and that this was not known to Burkhalter, the attorney,,until after the trial. It is not shown that this was not known to his client, either Mrs. Screws, the original plaintiff in fi. fa., or Sapp who claimed to be a transferee of it. The execution was proceeding in the name of Mrs. Screws as a party of record. It is true that the evidence developed the fact that she had made a settlement with the defendant in fi. fa., and the attorney claimed that such settlement did not extinguish the execution or prevent its proceeding. He.testified that under his contract of employment he was entitled to one half of the recovery as a fee. She denied that there was such a contract. In addition to tbe evidence on this subject, there was also evidence as to the value of services. Thus, while the attorney claimed to have the execution proceed for his benefit (which he might do for the amount of his fee: Civil Code, §2814; Kimbrough v. Pitts, 63 Ga. 496), and Sa,pp claimed to be a transferee, on the face of the record Mrs. Screws was the only party plaintiff, and the case proceeded in her name as such. A verdict was rendered against the affidavit of illegality to the extent of $75, as the attorney’s fee. In Wright v. Smith, 104 Ga. 174, it is held that “Kelationship of a juror within the prohibited degrees to the unsuccessful party in a case, although unknown to sucfi party or his counsel until after verdict, is not sufficient ground for a new trial.” See also Sikes v. State, 105 Ga. 592; Downing v. State, 114 Ga. 30. If, therefore, the plaintiff is to be considered as the losing party because the affidavit of illegality was sustained in part, these cases would be directly controlling. If she is to be treated as the successful party because the affidavit of illegality was not sustained in its entirety, a fortiori one in whose favor a verdict is rendered is not in position to complain of haying relatives on the jury. Although the attorney and his client differed in their testimony, yet he was not a party of record, nor can it be said that his client, in whose name alone the case was proceeding, was the opposite party.

5. While the evidence was conflicting, we can not say that the trial court abused his discretion in refusing to set aside the verdict.

6, 7. A motion was made to dismiss the writ of error, but it is without merit. The only ground which need be mentioned is that neither the attorney nor Sapp was made a party plaintiff in error. Neither of them was a party of record in the court below; and although it was claimed that the fi. fa. should proceed for their benefit, the only parties of record were the plaintiff and defendant in fi. fa. It was not essential, therefore, to make them plaintiffs in error. Had it been so, they could have been joined with the original plaintiff in error by amendment to the bill of exceptions. Western Union Tel. Co. v. Griffith, 111 Ga. 551.

Judgment affirmed.

All the Justices concur.