Carter v. Johnson

• Decision Date: 20 December 1900
• Citation: 37 S.E. 736,112 Ga. 494
• Parties: CARTER et al. v. JOHNSON et al.
• Court: Georgia Supreme Court

37 S.E. 736

112 Ga. 494

CARTER et al. v. JOHNSON et al.

Supreme Court of Georgia

December 20, 1900

Syllabus by the Court.

1. Since sustaining a demurrer to an affidavit of illegality would leave nothing to be tried, it is manifest that the overruling of such a demurrer cannot properly be made a ground of a motion for a new trial. See, in this connection, Willbanks v. Untriner, 25 S.E. 841, 98 Ga. 801; Holleman v. Fertilizer Co., 32 S.E. 83, 106 Ga. 157; Cleveland v. State, 34 S.E. 572, 109 Ga. 265.

2. A direct assignment of error upon a ruling made during the progress of a trial comes too late if for the first time presented in a bill of exceptions sued out more than 30 days after the adjournment of the term at which such ruling was made. Civ. Code, § 5539; Dietz v. Fahy, 33 S.E. 51, 107 Ga. 325, and cases cited.

3. The evidence warranted a finding in favor of the prevailing party, and there was no abuse of discretion in denying a new trial.

Error from city court of Waycross.

Action between Carter & Ford and A. J. Johnson and others. From the judgment, Carter & Ford bring error. Affirmed.

R. A. Hendricks, for plaintiffs in error.

Toomer & Reynolds, for defendants in error.

PER CURIAM.

Judgment affirmed.