Roane v. McIntosh

102 S.E. 129, 149 Ga. 666, 1920 Ga. LEXIS 361

• Court: Supreme Court of Georgia
• Decided: January 14, 1920
• Docket: No. 1376
• Status: Published

Opinion

Gilbert, J.

1. Where, after a judgment of nonsuit has been rendered, a petition for reinstatement is based on the grounds that the judgment is contrary to the law (the decision of which depends on the evidence) and contrary to the evidence, the filing of a brief of the evidence is essential. City of Atlanta v. Jenkins, 137 Ga. 454 (73 S. E. 402).

2. Where, after such a judgment, the petition to reinstate alleges surprise on account of an amendment of defendant’s plea calling for proof of a material fact, and prays for time to produce the necessary evidence, but fails to shoiv any reason Avhy such evidence could not have been available on the trial, or that any effort was made by plaintiff to obtain a postponement or continuance, it is error to overrule a general demurrer to the petition and to set aside the judgment and reinstate the ease.

No. 1376. January 14, 1920. Rehearing denied February 14, 1920.

Action for specific performance. Before Judge Ellis. Fulton superior court. January 20, 1919.

J. W. Mayson, W. S. Dillon, and Colquitt & Conyers, for plaintiff in error. S. G. McLendon and C. L. Pettigrew, contra.

Judgment reversed.

All the Justices concur.