McKool v. Naddra

Nichols, Judge. On January 26,1959, Nadra Naddra sued Dave McKool in the Civil Court of Fulton County to recover $1,437.50 plus interest at the rate of seven percent per annum from September, 1955; said action being for money had and received. The defendant filed general and special demurrers which were overruled. The defendant did not except to said ruling. When the cause came on to be heard before the judge, sitting without a jury, the defendant made an oral motion to dismiss on the grounds that the plaintiff failed to allege “what it was for,—what liabilities were incurred.” The court denied this motion. At the conclusion of the evidence the court entered judgment for the plaintiff for the full amount sued for. The defendant made a motion for new trial on the general grounds which he later amended to include 3 special grounds. The court denied the motion, and to this ruling the defendant excepts. Held: 1. The fact that the defendant failed to except to the ruling [172] overruling his general demurrer, established the law of this case that the plaintiff was entitled to recover, if he proved his case as alleged. Cloud v. Stewart, 92 Ga. App. 247, 249 (88 S. E. 2d 323); Roles v. Edwards, 49 Ga. App. 527 (176 S. E. 106) and cases cited. Decided September 14, 1959. E. B. Shaw, for plaintiff in error. Joseph S. Crespi, Crespi ,<& Milam, contra. 2. The special grounds are merely a restatement or elaboration of the general grounds and therefore will not be considered .separately. The plaintiff alleged in his petition, as amended, that he purchased the cashier’s check for $1,437.50; that he gave it to the defendant and for it he has received nothing of value; that he has made-demand but the defendant fails and refuses to repay it. He introduced evidence in support of these allegations and although the evidence was somewhat in conflict, nevertheless it was sufficient to authorize a finding that the plaintiff had proved his case as alleged. Accordingly the court did not err in denying the motion for new trial. Judgment affirmed. Felton, C. J., and Quillian, J., concur.