Lunsford v. Howe

Court of Appeals of Georgia

Lunsford v. Howe

30 S.E.2d 207, 71 Ga. App. 106, 1944 Ga. App. LEXIS 291

CourtCourt of Appeals of Georgia

DecidedMay 12, 1944

Docket30451.

StatusPublished

Cited by3 cases

This text of 30 S.E.2d 207 (Lunsford v. Howe) 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

Lunsford v. Howe, 30 S.E.2d 207, 71 Ga. App. 106, 1944 Ga. App. LEXIS 291 (Ga. Ct. App. 1944).

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Opinion

Felton, J.

1. In an action to recover $50, allegedly loaned by the plaintiff to the defendant, where the defendant denied two of the four-paragraphs of the petition, when the answer was stricken on demurrer, the ease was in default, and the plaintiff was entitled to a directed verdict. Pape v. Woolford Realty Co., 35 Ga. App. 284 (134 S. E. 174), and cit.; Pierce v. Jones, 30 Ga. App. 561 (137 S. E. 296); Hayes v. International Harvester Co., 52 Ga. App. 328 (183 S. E. 197).

2. Where in such a case a verdict was directed for the plaintiff, it was error to grant a new trial, the verdict being demanded.

3. There being no valid exception to the striking of the answer on demurrer, the ruling became the law of the case, and the trial judge was without authority to grant a new trial, the striking of the answer not being in any event the subject-matter of such a motion. Roles v. Edwards, 49 Ga. App. 527 (176 S. E. 106); Sims v. Ga. Ry. & Electric Co., 123 Ga. 643 (51 S. E. 573); L ittle v. Yow, 69 Ga. App. 335 (25 S. E. 2d, 232). On the question of what issues can be raised by a motion for a new trial and the authority of a judge to change a judgment based on a verdict, see Frazier v. Beasley, 59 Ga. App. 500 (1 S. E. 2d, 458); Scarbrough v. Bell, 193 Ga. 255 (17 S. E. 2d, 732).

4. Accordingly, it was not error for the superior court to sustain the certiorari on the ground that the trial court erred in granting a new

trial. Judgment affirmed.

Sutton, P. J., and Parker, J., concur. *107 James R. Tenable, Frank A. Bowers, for plaintiff in error. W. George Thomas, contra.

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Felton, J.

1. In an action to recover $50, allegedly loaned by the plaintiff to the defendant, where the defendant denied two of the four-paragraphs of the petition, when the answer was stricken on demurrer, the ease was in default, and the plaintiff was entitled to a directed verdict. Pape v. Woolford Realty Co., 35 Ga. App. 284 (134 S. E. 174), and cit.; Pierce v. Jones, 30 Ga. App. 561 (137 S. E. 296); Hayes v. International Harvester Co., 52 Ga. App. 328 (183 S. E. 197).

2. Where in such a case a verdict was directed for the plaintiff, it was error to grant a new trial, the verdict being demanded.

3. There being no valid exception to the striking of the answer on demurrer, the ruling became the law of the case, and the trial judge was without authority to grant a new trial, the striking of the answer not being in any event the subject-matter of such a motion. Roles v. Edwards, 49 Ga. App. 527 (176 S. E. 106); Sims v. Ga. Ry. & Electric Co., 123 Ga. 643 (51 S. E. 573); L ittle v. Yow, 69 Ga. App. 335 (25 S. E. 2d, 232). On the question of what issues can be raised by a motion for a new trial and the authority of a judge to change a judgment based on a verdict, see Frazier v. Beasley, 59 Ga. App. 500 (1 S. E. 2d, 458); Scarbrough v. Bell, 193 Ga. 255 (17 S. E. 2d, 732).

4. Accordingly, it was not error for the superior court to sustain the certiorari on the ground that the trial court erred in granting a new

trial. Judgment affirmed.

Sutton, P. J., and Parker, J., concur. *107 James R. Tenable, Frank A. Bowers, for plaintiff in error. W. George Thomas, contra.

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30 S.E.2d 207, 71 Ga. App. 106, 1944 Ga. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lunsford-v-howe-gactapp-1944.

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