Allen's Lithographing Trade Plant, Inc. v. Rapid Roller Co.

Court of Appeals of Georgia

Allen's Lithographing Trade Plant, Inc. v. Rapid Roller Co.

130 S.E.2d 805, 107 Ga. App. 557, 1963 Ga. App. LEXIS 904

CourtCourt of Appeals of Georgia

DecidedApril 2, 1963

Docket40003

StatusPublished

This text of 130 S.E.2d 805 (Allen's Lithographing Trade Plant, Inc. v. Rapid Roller Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allen's Lithographing Trade Plant, Inc. v. Rapid Roller Co., 130 S.E.2d 805, 107 Ga. App. 557, 1963 Ga. App. LEXIS 904 (Ga. Ct. App. 1963).

Pincite

Opinion

Eberhardt, Judge.

This is a verified suit on open account in which the defendant filed a verified general denial. The trial resulted in a verdict for plaintiff in the full amount. Defendant’s motion for new trial on the general and three special grounds was overruled and exception taken. Held:

1. The general grounds are not argued and are abandoned.

2. Special ground 1 complains that the judge expressed an opinion in the presence of the jury when he stated that defendant’s answer, a general denial only, was subject to a motion to strike and therefore that evidence as to failure of consideration could not be allowed. This opinion was one concerning the legal effect of a pleading; the opinions, expression of which is forbidden by Code § 81-1104, are those relating to facts.

3. Special ground 2 is that the “court refused to allow the defendant to get into the question as to the quality of the blankets.” In addition to the infirmity mentioned above, i.e., general denial only filed, there is no showing of what the witness was expected to testify or the materiality of his testimony. Leverett, Hall & Christopher, Ga. Procedure & Practice, 491, § 22-4 (5).

4. “An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently thereto the case is submitted to the jury, and after verdict being for the plaintiff a motion for new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.” Venable v. Gresham, 105 Ga. App. 720 (3) (125 SE2d 507).

None of the grounds showing error, the judgment overruling the motion for new trial is affirmed.

Judgment affirmed.

Felton, C. </., and Bussell, J., concur.

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Eberhardt, Judge.

This is a verified suit on open account in which the defendant filed a verified general denial. The trial resulted in a verdict for plaintiff in the full amount. Defendant’s motion for new trial on the general and three special grounds was overruled and exception taken. Held:

1. The general grounds are not argued and are abandoned.

2. Special ground 1 complains that the judge expressed an opinion in the presence of the jury when he stated that defendant’s answer, a general denial only, was subject to a motion to strike and therefore that evidence as to failure of consideration could not be allowed. This opinion was one concerning the legal effect of a pleading; the opinions, expression of which is forbidden by Code § 81-1104, are those relating to facts.

3. Special ground 2 is that the “court refused to allow the defendant to get into the question as to the quality of the blankets.” In addition to the infirmity mentioned above, i.e., general denial only filed, there is no showing of what the witness was expected to testify or the materiality of his testimony. Leverett, Hall & Christopher, Ga. Procedure & Practice, 491, § 22-4 (5).

4. “An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently thereto the case is submitted to the jury, and after verdict being for the plaintiff a motion for new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it.” Venable v. Gresham, 105 Ga. App. 720 (3) (125 SE2d 507).

None of the grounds showing error, the judgment overruling the motion for new trial is affirmed.

Judgment affirmed.

Felton, C. </., and Bussell, J., concur.

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Bluebook (online)

130 S.E.2d 805, 107 Ga. App. 557, 1963 Ga. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allens-lithographing-trade-plant-inc-v-rapid-roller-co-gactapp-1963.

Opinion

1. The general grounds are not argued and are abandoned.

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