McLean v. Mann

95 S.E. 985, 148 Ga. 114, 1918 Ga. LEXIS 213

• Court: Supreme Court of Georgia
• Decided: May 15, 1918
• Docket: No. 666
• Status: Published

Opinion

Geobge, J.

1. Where a ground' of an amendment to a motion for new trial, complaining of the admission of testimony, is not approved as true by the trial judge, but “is approved with following qualifications,” setting out the qualifications, which in this case are material qualifications, it will not be considered by this court. If the judge approve the ground of the amendment, without more, this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of the ground as true. L. & N. R. Co. v. Ogles, 146 Ga. 20 (90 S. E. 476); Landrum v. Landrum, 145 Ga. 307 (2) (89 S. E. 201). Cf. also Central of Georgia Railway Co. v. Mills, 143 Ga. 47 (84 S. E. 120); Love v. Love, 146 Ga. 160 (91 S. E. 27).

2. Where in a civil ease the judge, in stating the- contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the case, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial. Martin v. Nichols, 127 Ga. 705 (56 S. E. 995); Cordele Sash &c. Co. v. Wilson Lumber Co., 129 Ga. 290 (2) (58 S. E. 860); Hewitt v. Lamb, 130 Ga. 709 (2) (61 S. E. 716, 14 Ann. Cas. 800).

3. The charge of the court upon the question of estoppel, assigned as error in the motion for new trial, was authorized by the pleadings and evidence in the case. There is no complaint that the charge was not a correct statement of the law.

4. The evidence warranted the verdict, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent. A. A. McLean and W. 17. Bennett, for plaintiff. 17. 8. Mann, for defendants.