Jones v. Pitts & Son

Lumpkin, Justice. This was a proceeding by Pitts & Son against Mrs. Jones to foreclose a mortgage on realty, and 'resulted in a judgment in favor of the plaintiffs. She brought the case to-this court for review by a bill of exceptions which contains no clear and distinct assignment of error. One thing complained of is, that the court sustained a demurrer “to- the 6th paragraph and 2d plea of defendant.” The pleas, as sent up in the record, are not numbered; but as only one of them has a “6th” paragraph, we presume this to be the plea referred to. It appears, however, that after an amendment to the defendant’s plea, the court “set aside said demurrer.” The effect of this was to reinstate the 6th paragraph alluded, to, so this action of the court left the defendant, -as to this matter, without cause for complaint. Again, the bill of exceptions complains that the court sustained a demurrer to the “7th paragraph and 3d plea of [522] defendant.” As there is only one Ith paragraph in any of the pleas sent np in the record, we will assume that is the one intended.' Whether or not it was error to strike this portion of the defense is immaterial, for the reason that another plea which was neither demurred to nor stricken contains substantially the same averments, and this latter plea was voluntarily withdrawn by 'the defendant after the other had been stricken. Had the defendant allowed the plea thus withdrawn to have remained, she could have obtained under it every possible right and advantage which she could have derived from the plea which was stricken. There was no motion for a new trial, but the bill of exceptions undertakes to complain directly that the amount of the verdict was too .large. It is well settled that an error of this kind in a verdict cannot be thus reviewed. Judgment affirmed.