Nottingham v. Nicholson

151 S.E. 533, 40 Ga. App. 754, 1930 Ga. App. LEXIS 686

Opinion

Jenkins, P. J.

1. "That a judgment does not follow, or is not authorized by, the verdict upon, which it is'entered is not'a gO.od ground of a t. motion for a new trial.” Potts v. City of Atlanta, 140 Ga. 431 (2), 433 (79 S. E. 110); Chason v. Anderson, 119 Ga. 495 (4) (46 S. E. 629); Thomas v. Clarkson, 125 Ga. 72 (7), 6 L. R. A. (N. S.) 658 (54 S. E. 77); Fowler v. Johnson, 151 Ga. 122 (c) (106 S. E. 90). Accord-i ingly whether the verdict returned by the-jury in the instant case, con- . strued with reference to the pleadings and the evidence (Giles v. Spinks, 64 Ga. 205; Harvey v. Head, 68 Ga. 247; Seifert v. Holt, 82 Ga. 757, 9 S. E. 843; Civil Code of 1910, § 5927), sliould'be taken as a finding for •the plaintiff in the sum of $4.75 principal and $49.87 interest, or as a . finding for the plaintiff in the sum of $475 principal and $49.87 interest, the action of the court in entering up judgment in plaintiff’s favor for $475 principal and $49.87 interest can not be reviewed by ' ‘ a motion for a new trial.

2. Where one of the items going to make up the account sued on, as ap- ; peared from the pleadings ■ and proof, was a charge for services in selecting and stacking certain lumber, clear of knots, from lumber sawed by the plaintiff for the defendant, the instruction of the court to the jury that, among 'other things, they should determine “how much 'of • ■ ■ this timber was to be clear board,” could not reasonably be taken as ,. confusing to .the jury or prejudicial t.o the rights of the defendant.

3. The evidence authorized a finding in favor of the plaintiff, in the amount for which judgment was rendered, and the court did not err in ’ overruling the motion for a new trial.

Judgment affirmed.

Stephens and Bell, JJ., eoneur. Homer Beeland, John H. McGehee Jr., Dan S. Beeland, for plaintiff in error. James B. Davis, contra.