Deaton v. Day

J. F. Day instituted an action of complaint for land, and for mesne profits alleged to be of the yearly value of $25, against Marcena Majors. The defendant set up a judgment setting apart the land *699as dower from her deceased husband’s estate. At the conclusion of the evidence at the trial, the plaintiff disclaimed all right of mesne profits, and a verdict was directed in his favor for the land. The defendant made a motion for new trial, and excepted to the judgment overruling the same. While the ease was pending in the. Supreme Court the plaintiff in error died, and the administrator upon her estate was made a party plaintiff in error. Upon the call of the case for hearing the defendant in error moved to dismiss the writ of error, on the ground that the dower estate had terminated and no interest passed to the administrator. In response to the motion it was not made to appear that the estate of the widow had any further interest in the property or other property right involved. ' Held:

1. Under the circumstances a reversal of the judgment could not affect any right other than the payment of costs.

2. The judgment refusing a new trial will not be reversed merely to enable the movant to recover costs. Tabor v. Hipp, 136 Ga. 123 (70 S. E. 886, Ann. Cas. 1912C, 246); Carter v. Gabrels, 136 Ga. 177 (71 S. E. 3); A. & W. P. R. R. Co. v. Golightly, 148 Ga. 582 (97 S. E. 516). Accordingly the motion to dismiss must prevail.

Writ of error dismissed.