Turner v. Spell Live Stock Co.

Bell, J. 1. A ruling of the court in striking a plea cannot be made the ground of a motion for a new trial. Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. Rep. 190); Methodist Episcopal Church v. Dudley, 137 Ga. 68 (3) (72 S. E. 480). While the striking of the plea in this case is recited in the bill of exceptions, the only assignment of error thereon is contained in the motion for a new trial. 2. Moreover, where one who is dissatisfied with a verdict seeks to set it aside by a motion for a new trial, a brief of the evidence is an indispensable requisite to the validity of the motion. In other words, if there is no brief of evidence, the so-called motion for a new trial goes for naught, and the action of the trial judge, either in overruling it or dismissing it, will be affirmed. This is true even though the original motion may have been amended by the addition of new grounds, the determination of which would not require a consideration of the evidence. Civil Code (1910), §§ 6080, 6306; Whitaker v. State, 138 Ga. 139 (1), 140 (75 S. E. 254); Baker v. Johnson, 99 Ga. 374 (27 S. E. 706); Mize v. Americus Mfg. Co., 106 Ga. 140 (32 S. E. 22); Holloman v. Small, 111 Ga. 812 (1) (35 S. E. 665); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654); Price v. Price, 122 Ga. 321 (50 S. E. 91). The so-called motion for a new trial in this case was possessed of the defect mentioned, and therefore no error was committed in overruling it. (a) Where an answer is stricken, and a verdict and judgment are thereupon rendered for the plaintiff, without evidence, as in cases of default, a motion for a new trial is not the proper remedy for avoiding such verdict and judgment. Judgment affirmed. Jenldns, P. J., and Stephens, J., concur.