Norman & Harrell v. Great Western Tailoring Co.

49 S.E. 782, 121 Ga. 813, 1905 Ga. LEXIS 79

• Court: Supreme Court of Georgia
• Decided: January 28, 1905
• Status: Published

Opinion

Simmons, C. J.

1. Without exceptions pendente lite and an assignment of error thereon, a ruling made on. August 10 can not be brought under review by a bill of exceptions tendered February 27 following.

2. Where a demurrer is filed to a suit upon an account, on the ground that no. sufficient bill of particulars is attached, and the judge gives plaintiff ten days within which to amend to meet this objection, arid the plaintiff does so amend, there is no error in subsequently refusing to dismiss the action on the ground that, the defendant was not served with a copy of the amendment.

3. Where after the first term the defendant offers to file his answer, and the same is refused by the court on the ground that the case is in default, and the record is silent as to whether the case had been marked in default on the docket, this court will presume in favor of the ruling of the court below that such entry had been made.

Argued December 16, 1904. — Decided January 28, 1905.

Complaint. Before Judge Covington. City court of Moultrie. February 8, 1904.

W. F. Way, for plaintiffs in error. Shipp & Klim, contra.

4. Where the defendant in a suit upon an account is in default, it is unnecessary, under Civil Code, § 5078, for the plaintiff to make out his case by proof.

Judgment affirmed.

AU the Justices concur.