Equitable Manufacturing Co. v. Hill-Atkinson Co.

87 S.E. 715, 17 Ga. App. 494, 1916 Ga. App. LEXIS 728

Opinion

Russell, C. J.

1. Judgments on tlie sufficiency of the pleadings can not properly be made grounds of a motion for a new trial. Mayor &c. of Dublin v. Dudley, 2 Ga. App. 762 (59 S. E. 84).

2. Judgment on demurrer, whether it be to the petition or to the answer and pleas, fixes the law of the case, so far as the law is necessarily involved in the judgment rendered, until it is reversed or overruled upon timely exceptions. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (46 S. E. 659); Moody v. Cleveland Woolen Mills, 133 Ga. 141 (66 S. E. 908). While an amendment made by the opposite party may open the pleadings to demurrer anew, it does not open them to new rulings upon the identical questions already previously adjudicated in the same case. Central of Ga. Ry. Co. v. Waldo, 6 Ga. App. 840 (55 S. E. 1098).

3. While parol evidence is usually inadmissible to add to, contradict, or vary the terms of a written contract which has become operative between the parties by reason of its execution and delivery, still parol evidence is admissible to show that a contract apparently operative between the parties was never fully executed or delivered, or that it'was not to become a completed contract until certain prerequisites had been 'complied with. Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S. E. 590); Hartman Stock Farm v. Henley, 8 Ga. App. 255 (68 S. E. 957); American Jobbing Co. v. Register, 5 Ga. App. 543 (63 S. E. 599); Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706).

4. Grounds of a motion for a new trial which are not approved by the trial judge present nothing for the consideration of a court of review.

5. The court did not err in overruling the motion for a new trial.

Judgment affirmed,