Kelly v. Malone

63 S.E. 639, 5 Ga. App. 618, 1909 Ga. App. LEXIS 89

Opinion

Russell, J.

1. A motion to strike a paragraph, of the defendant’s answer is an oral demurrer thereto. Exception to the judgment rendered! upon such a motion must be preserved by exceptions pendente lite, unless the bill of exceptions is certified within thirty days from the day of the judgment of which complaint is made. A ruling upon a motion ta strike either a part or the whole of a defendant’s answer can not be reviewed by a motion for new trial.

Complaint, from city court of Montieello — Judge Thurman. March 11, 1908.

Submitted May 8, 1908. Decided February 9, 1909. A. T. Clement, for plaintiff in error. Greene F. Johnson, contra.

2. It is not error to exclude evidence which is not pertinent to the pleadings,

(a) Where both parties to a cause rely upon an express contract, and are in conflict only as its terms, and this is the only issue raised by the pleadings, it is pot error to exclude 'testimony as to the value of services which were the subject-matter of the contract; nor is it error to refuse to allow proof that others had offered to perform such services for a different amount. Jacobus v. Wood, 84 Ga. 639 (2, 4), (10 S. E. 1099).

3. The verdict was authorized by the evidence, and there was no error in refusing a new trial. Judgment affirmed.