McConnell v. Selph

Blood worth, J. 1. Neither the first nor the second special ground of the motion for a new trial presents any question for determination by this court. 2. The judgment of the trial court refusing a new trial, on condition that a specified portion of a verdict, which part is unauthorized by the pleadings, be written off by the plaintiff, is not erroneous where the amount to be written off is readily and accurately ascertainable from the record. Tifton, Thomasville & Gulf Railway Co. v. Chastain, 122 Ga. 250 (7) (50 S. E. 105); Central Railway Co. v. Perkerson, 112 Ga. 923 (4) (38 S. E. 365, 53 L. R. A. 210). In this case interest was not sued for, yet in their verdict the jury included the interest, and the amount of the principal named in the verdict was in excess of that sued for. The judge refused a new trial, on condition that the interest and the excess of principal over that sued for be written off, and the judgment taken complied with these conditions. This was not error. Civil Code (1910), § 5694; Steadman v. Simmons, 39 Ga. 591 (4); Hendry v. Hurst, 22 Ga. 312 (6); Brinson v. Reid, 107 Ga. 250, 251 (33 S. E. 31); Lee v. Bagwell, 14 Ga. App. 699 (82 S. E. 49); Bennett v. Hazlehurst Mereantile Co., 8 Ga. App. 591 (69 S. E. 1084). Nor will a new trial be granted in such a ease for the reason that the court erroneously charged the jury that if they should find that the plaintiff was entitled to recover, “ he would be entitled to interest at seven per cent, from the time he made the demand upon the defendant for the money he claims to be due him in the ease.” Seaboard Air-Line Railway v. Bishop, 132 Ga. 71 (63 S. E. 1103); Vigal v. Castleberry, 67 Ga. 600' (3). The foregoing ruling disposes of special grounds 3, 4, and 5 of the motion for a new trial. 3. No error which requires the grant of a new trial is shown by any of the grounds based upon alleged errors in the charge. 4. The amount of the verdict in excess of that authorized by the pleadings having been written off, and the verdict as reduced having sufficient evidence to support it, the court did not err in overruling the motion for a new trial. Judgment affirmed. Broyles, C. J., and Luke, J., concur. G. A. Christian, R. A. Hendricks, for plaintiff in error. J. Z. Jackson, contra.