Jones v. Sikes

134 S.E. 113, 35 Ga. App. 469, 1926 Ga. App. LEXIS 917

• Court: Court of Appeals of Georgia
• Decided: June 15, 1926
• Docket: 17191
• Status: Published

Opinion

Bloodwobth, J.

1. “An assignment of error complaining of tire admission of documentary evidence over objection urged at the time it was admitted should set forth literally or in substance the evidence objected to, or identify it as an exhibit attached and made a part of the bill of exceptions. If it fails to do either, the assignment of error will not present any question for consideration. Bacon v. Howard, 152 Ga. 616 (2) (110 S. E. 888) ; Callaway v. Beauchamp, 140 Ga. 207 (2) (78 S. E. 846).” McBurnette v. Huff, 154 Ga. 452 (114 S. E. 578). See also McCollum v. Thomason, 32 Ga. App. 160 (8), 163 (122 S. E. 800); Webb v. State, 13 Ga. App. 734 (4) (80 S. E. 14). This ruling disposes of special grounds 4, 6, and 7 of the motion for a new trial.

Decided June 15, 1926. H. B. Kimbrough, L. G. Anderson, P. M. Anderson, for plaintiff in error. J. Saxton Daniel, contra.

2. In ground 5 of the motion the court is alleged to have erred in allowing certain evidence to go to the jury. There is no merit in this ground. This evidence could not have influenced the jury to return a different verdict, and was harmless. Indeed, in the ground itself it is stated that this evidence is “immaterial and illustrates no issue in the trial.”

3. When the pleading's, the evidence, and the entire instructions to the jury are considered, there is nothing in the excerpt from the charge of which complaint is made in the motion that requires the grant of a new trial.

4. A ground of the motion alleges that a member of the jury that tried the case was related within the prohibited degree to one of the plaintiffs. Under the counter-showing made by the opposite party, this court can not say that the trial judge abused his discretion in overruling the motion. See Buchanan v. State, 118 Ga. 751 (9) (45 S. E. 607) ; Johnston-Crews Co. v. Smith, 33 Ga. App. 25 (125 S. E. 734). Moreover it was claimed by the plaintiff that the defendant waived the disqualification of the jiiror, and in McLendon v. Clark, 159 Ga. 264 (2) (125 S. E. 447), it was held: “Under the counter-showing the trial judge was authorized to hold that the movants were estopped from setting up the fact of relationship of the juror to the prevailing party as a ground for a new trial, because of the waiver that was made as to disqualification of jurors by counsel for caveators while the jury was being obtained.”

5. The jury settled the disputed questions of fact in favor of the plaintiff; the judge who tried the case approved their finding. No error of la,w was committed upon the trial, and this court is powerless to interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.