Avery & Co. v. Graham

105 S.E. 708, 26 Ga. App. 161, 1921 Ga. App. LEXIS 39

• Court: Court of Appeals of Georgia
• Decided: January 25, 1921
• Docket: 11337, 11338
• Status: Published

Opinion

Luke, J.

1. “ 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 thirty days after the adjournment of the term at which such ruling was made.” Heery v. Burkhalter, 113 Ga. 1043(1) (39 S. E. 406). Nor can such a ruling be properly made a ground of a motion for a new trial. Methodist Episcopal Church South v. Dudley Sash, Door, & Lumber Co., 137 Ga. 68 (72 S. E. 480). Under these rulings the assignment of error, in the bill of exceptions and in the motion for a new trial, upon the overruling of the plaintiff’s motion to strike the defendant’s answer, cannot be considered.

2. Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial will not be considered when the ground is so incomplete that it requires a reference to some other part of the record. Under this ruling the grounds of the amendment to the motion for a new trial from the 3d to the 7th, inclusive, and from the 9th to the 18th, inclusive, cannot he considered.

3. A ground of a motion for a new trial complaining of the exclusion of evidence cannot be considered where it fails to show on what ground the evidence was excluded. Central of Georgia Ry. Co. v. Jagues & Tinsley, 23 Ga. App. 396(2) (98 S. E. 357). Under this ruling, grounds 19, 20, and 21 raise no question for the consideration of this court.

4. The assignment of error upon the refusal of the.court to comply with a certain written request to charge cannot he considered, since it does not appear that the request was tendered to the court before the jury re•tired to consider the case. Barrow v. Seaboard Air-Line Railway, 18 Ga. App. 261(4) (89 S. E. 383).

Decided January 25, 1921.

Complaint; from Effingham superior court — Judge Sheppard. December 9, 1919.

Don II. Ciarle, for plaintiffs. Travis & Travis, for defendants.

5. There is no substantial merit in any of the remaining grounds of the amendment to the motion for a new trial.

6. The assignments of error in the general grounds of the motion for a new trial are dependent upon a consideration of the evidence in the case, and will not be considered, as there is no proper brief of evidence in the record, and apparently no bona fide effort was made to prepare one. Newborn v. Weitzer, 15 Ga. App. 668 (84 S. E. 141), and citations.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

Broyles, G. J., and Bloodworth, J., concm-.