Sanders v. Simms

Felton, J. 1. Ground 6 of the motion for a new trial, complaining of the overruling of a motion to dismiss the action, is without merit, as such is not a proper ground for a motion for a new trial. And the assignment of error on the overruling of the motion to dismiss cannot be considered, as the objection to the overruling of the motion was not preserved by exception pendente lite within the time provided by law. Ga. L. 1933, p. 293; § 42(b); Glass v. Brown, 49 Ga. App. 610(1) (176 S. E. 519); Ozburn v. National Union Fire Ins. Co., 53 Ga. App. 682(1) (186 S. E. 852). 2. Where the defendant admitted receiving all of the moneys sued for, and the only reason which he gives for contending that he does not owe the account is that he was sent by the plaintiff into a territory which had been worked, but which the plaintiff had told him had not been worked, and where the evidence as to this was conflicting, the court, sitting a trior of facts, was authorized to return a verdict in favor of the plaintiff for the amount sued for. 3. As the defendant admitted receiving the moneys shown in the bill of particulars, it was not harmful for the court to allow a copy of said bill of particulars to be introduced in evidence. The Appellate Division of the Civil Court of Fulton County did not err in afflrming the judgment of the trial division of that court. Judgment affirmed. Sutton, C.J., and Worrill, J., concur. Robert B. Blackburn, for plaintiff in error. Harris, Henson, Spence & Gower, contra.