Montgomery v. Nunnally

Court of Appeals of Georgia

Montgomery v. Nunnally

157 S.E. 911, 43 Ga. App. 93, 1931 Ga. App. LEXIS 194

CourtCourt of Appeals of Georgia

DecidedMarch 31, 1931

Docket21102

StatusPublished

Cited by5 cases

This text of 157 S.E. 911 (Montgomery v. Nunnally) 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

Montgomery v. Nunnally, 157 S.E. 911, 43 Ga. App. 93, 1931 Ga. App. LEXIS 194 (Ga. Ct. App. 1931).

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Opinion

Broyles, C. J.

1. The first special ground of the motion for a new trial, complaining of the admission of certain specified evidence, shows that, when the evidence was offered, the only objection urged was that the evidence was “immaterial and irrelevant.” Under repeated rulings’ of the Supreme Court and of this court the objection is too general to be considered.

2. Bach of the three remaining special grounds of the motion for a new trial complains of a specified excerpt from the charge of the court. However, in each ground the only "assignment of error is as follows: “Movants aver the said charge was erroneous and not sound as an ab-tract principle of law.” Such an assignment of error raises no question for the consideration of this court. It is not even alleged in any of these grounds that the charge was harmful to the movants. Furthermore, the grounds were otherwise not complete within themselves.

3. Upon the trial of an affidavit of illegality, the fi. fa. is a part of the pleadings before the jury, and need not be formally introduced as evidence. Dever v. Akin, 40 Ga. 423, 429; Wactor v. Marshall, 102 Ga. 746, 747 (29 S. E. 703) ; James v. Cooledge, 129 Ga. 860 (60 S. E. 182) ; Miller v. Perkerson, 128 Ga. 465 (57 S. E. 787) ; Thompson v. Fain, 139 Ga. 310, 312 (77 S. E. 166). If there be any contrary ruling in James v. Edward Thompson Co., 17 Ga. App. 578 (87 S. E. 842), and in the case cited therein (Bertody v. Ison, 69 Ga. 317, 319), that ruling must give way to the older decision of the Supreme Court in Dever v. Akin, supra.

4. The evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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Broyles, C. J.

1. The first special ground of the motion for a new trial, complaining of the admission of certain specified evidence, shows that, when the evidence was offered, the only objection urged was that the evidence was “immaterial and irrelevant.” Under repeated rulings’ of the Supreme Court and of this court the objection is too general to be considered.

2. Bach of the three remaining special grounds of the motion for a new trial complains of a specified excerpt from the charge of the court. However, in each ground the only "assignment of error is as follows: “Movants aver the said charge was erroneous and not sound as an ab-tract principle of law.” Such an assignment of error raises no question for the consideration of this court. It is not even alleged in any of these grounds that the charge was harmful to the movants. Furthermore, the grounds were otherwise not complete within themselves.

3. Upon the trial of an affidavit of illegality, the fi. fa. is a part of the pleadings before the jury, and need not be formally introduced as evidence. Dever v. Akin, 40 Ga. 423, 429; Wactor v. Marshall, 102 Ga. 746, 747 (29 S. E. 703) ; James v. Cooledge, 129 Ga. 860 (60 S. E. 182) ; Miller v. Perkerson, 128 Ga. 465 (57 S. E. 787) ; Thompson v. Fain, 139 Ga. 310, 312 (77 S. E. 166). If there be any contrary ruling in James v. Edward Thompson Co., 17 Ga. App. 578 (87 S. E. 842), and in the case cited therein (Bertody v. Ison, 69 Ga. 317, 319), that ruling must give way to the older decision of the Supreme Court in Dever v. Akin, supra.

4. The evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

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Bluebook (online)

157 S.E. 911, 43 Ga. App. 93, 1931 Ga. App. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-nunnally-gactapp-1931.

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