Mayeske v. Owen

Nichols, J. The second special ground of the motion for new trial complains that the trial court erred in denying the motion of the plaintiff in fi. fa. to dismiss the claim upon the ground that the trial court was without jurisdiction. The refusal of the trial court to dismiss the action for lack of jurisdiction is not a proper ground for a motion for new trial, and as here presented cannot be considered. Nesmith v. Mohr & Sons, 7 Ga. App. 558 (2) (67 S. E. 221); Jarrard v. Wildes, 87 Ga. App. 30, 31 (73 S. E. 2d 116). The first special ground complains that the trial court erred in denying the motion of the plaintiff in fi. fa. for a trial before a jury on the facts. A ruling on a motion for a trial before a jury falls within the category of a ruling on the pleadings or other preliminary rulings, and the assignment of error thereon is not a proper ground of a motion for a new trial. Fechtel v. Chastain, 79 Ga. App. 517, 518 (54 S. E. 2d 459); Padgett v. Reeves, 86 Ga. App. 137 (2) (70 S. E. 2d 922). See also Krasner v. Croswell, 76 Ga. App. 373 (45 S. E. 2d 800). The plaintiff in fi. fa. contends that the judgment was (without evidence to support it, and decidedly against the weight of the evidence. There was evidence that the claimant was the holder of a conditional-sale contract covering the property levied on, that such conditional-sale contract was recorded prior to the time when the plaintiff’s fi. fa. was recorded, and that the conditional-sale contract was not redeemed. Accordingly, there was evidence to support the judgment of the trial judge, hearing the case without a jury, and there was no error in the judgment denying the motion for new trial on the general grounds. Judgment affirmed. Felton, C. J., and Quillian, J., concur.