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WILKES v. SHEPPARD; and vice versa.
39109.
39110.
Trover for dog, etc. Laurens Superior Court. Before Judge Ward.
FELTON, Chief Judge.
1. Where parties stipulate in the trial of a trover action that the plaintiff would testify if put on the stand that the property sued for is his property and there is no evidence to the contrary, it is not error for the court to direct a verdict in favor of the plaintiff for the property sued for.
2. Matters growing out of circumstances which might possibly give a defendant legal or equitable rights based on an implied contract to pay can not be urged by the defendant in this bail trover action in the absence of circumstances sufficient to give rise to equitable relief.
Larry Wilkes instituted a bail trover action in the 342nd G. M. District Justice Court of Laurens County, Ga., against Thurman Sheppard for the recovery of a bird dog of the alleged value of $200. To this action the defendant filed a plea in abatement in which he contended that the plaintiff was barred from proceeding with the action because the plaintiff had not tendered to the defendant expenses for medical and other care and treatment of the dog, and for the feeding of the dog. In this plea the defendant prayed that the action abate until the plaintiff tendered the defendant "satisfaction of the defendant's equitable lien upon the property concerned." The defendant also filed an answer and setoff based on the facts alleged in his plea in abatement. The justice of the peace rendered a judgment in favor of the plaintiff for the property in specie. The defendant appealed to a jury in the Superior Court of Laurens County. The defendant filed an amendment to his plea in abatement and an amendment to his answer and setoff to the effect that the defendant was entitled to an additional equitable lien in the amount of $50 to cover the expense of training the dog to hunt birds. The motion of the plaintiff, in the nature of a general demurrer, to dismiss the defendant's plea in abatement, as amended, was sustained and the plea was stricken. Thereafter the parties entered into a stipulation as to what various witnesses would testify in the main trover action. This stipulation included the agreement that the plaintiff would testify that the dog sued for was his property and there was no evidence to the contrary. The plaintiff then moved to dismiss the plea of setoff, as amended, on the grounds that the plea attempted to set up an action ex contractu against an action ex delicto and for the reason that the plea did not set forth any item of recoverable damages against the plaintiff. The court overruled the plaintiff's motion to dismiss the defendant's plea of setoff. The court directed the jury to find a verdict in favor of the plaintiff for the dog sued for, and after the introduction of evidence submitted to the jury the issues made by the plea of setoff or cross-action. The jury returned a verdict in favor of the defendant on the plea in the amount of $114. The plaintiff made a motion for a new trial which was overruled. The plaintiff excepts to the overruling of his motion to dismiss the plea of setoff or cross-action and to the overruling of his motion for a new trial. By cross-bill the defendant excepts to the direction of a verdict in favor of the plaintiff for the property sued for and to the court's sustaining the plaintiff's motion to dismiss the plea in abatement.
1. The parties stipulated that the plaintiff would testify that the dog sued for belonged to him. Since there was no evidence contradicting this fact, the court did not err in directing a verdict in favor of the plaintiff for the dog.
2. The questions concerning the motion to dismiss the defendant's plea in abatement and plea of setoff can be answered together. The court did not err in striking the plea in abatement for the same reason that he erred in refusing to dismiss the plea of setoff or counter-claim. The plea in bar and the plea of setoff, or counter-claim, involved a claim which could only be based on the theory of implied contract to pay the defendant, assuming but not deciding that such a claim could be sustained. What the court stated in Powers v. Wren, 198 Ga. 316, 319 (31 SE2d 713) seems to be sufficient to cover the issues raised by the two motions to dismiss. The court in that case stated: "The present action is a trover suit. The gist of such an action is conversion. Southern Express Co. v. Sinclair, 130 Ga. 372 (60 SE 849). It is one brought against a wrongdoer and sounds in tort. The cross-action was on contract. The two claims were not of a similar nature. This was a sufficient reason to strike the cross-action. McArthur v. Wilson, 13 Ga. App. 502 (79 SE 374); Hecht v. Snook & Austin Furniture Co., 114 Ga. 921 (41 SE 74) . . . With the one exception contained in the Code, 107-102, which is not here applicable, no counterclaim is permitted to be urged in an action of trover, in the absence of exceptional circumstances sufficient to give rise to equitable relief. Barrow v. Mallory, 89 Ga. 76 (14 SE 878); Harden v. Lang, 110 Ga. 392, 396 (36 SE 100). The section above cited, codified from the act approved August 15, 1903 (Ga. L. 1903, p. 84), which in certain instances permits a defendant to plead a set-off or to recoup in damages, is limited to suits brought to recover personal property where the vendor retains title. This is not that kind of a case."
The court did not err in directing a verdict in favor of the plaintiff for the dog sued for. The court did not err in dismissing the plea in abatement but did err in overruling the motion to dismiss the plea of setoff or cross-action. The judgment in favor of the plaintiff for the dog sued for shall remain in effect. The court is directed to dismiss the plea of setoff or cross-action and this will, under the circumstances of this case, terminate the litigation. In view of the ruling on the motion to dismiss the plea of setoff or cross-action, it is not necessary to rule on the exception to the overruling of the motion for a new trial.
Larsen & Larsen, W. W. Larsen, contra.
Jones & Douglas, Paul J. Jones, Jr., for plaintiff in error.
DECIDED OCTOBER 27, 1961.
Friday May 22 23:51 EDT


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