Strickland v. Roe

Sutton, J. To a petition in a trover suit the defendant, plaintiff in error in this court, filed a general demurrer which was overruled. Thereafter the case proceeded to trial and resulted in a verdict and judgment for the plaintiff. The defendant filed a motion for new trial on the general grounds, and by amendment added a special ground complaining of the judgment of the court in overruling his general demurrer. The bill of exceptions assigns error only on the judgment overruling the motion for new trial, and no brief of the evidence is contained in the record or in the bill of exceptions. Held: 1. No assignment of error having been made in the bill of exceptions on the judgment overruling the general demurrer, no question is presented to this court as to whether the trial court erred, as contended by the plaintiff in error in his brief, in overruling the general demurrer. 2. A judgment overruling a demurrer to a petition can not properly be made a ground of a motion for new trial. McDuffie County v. Gunn, 50 Ga. App. 198 (2) (177 S. E. 363), and cit.; Dumas v. Thomas, 188 Ga. 90 (2 S. E. 2d, 915). Accordingly, the special ground of the motion for new trial can not be considered. 3. No brief of evidence is sent up with the record or contained in the bill of exceptions. Accordingly, it can not be determined by this court whether or not the court erred in overruling the general grounds of the motion for new trial. Judgment affirmed. Stephens, P. J., and Felton, J., concur.