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Lawskills.com Georgia Caselaw
ALLEN'S LITHOGRAPHING TRADE PLANT, INC. v. RAPID ROLLER COMPANY.
40003.
EBERHARDT, Judge.
Action on account. Fulton Civil Court. Before Judge Camp.
This is a verified suit on open account in which the defendant filed a verified general denial. The trial resulted in a verdict for plaintiff in the full amount. Defendant's motion for new trial on the general and three special grounds was overruled and exception taken. Held:
1. The general grounds are not argued and are abandoned.
2. Special ground 1 complains that the judge expressed an opinion in the presence of the jury when he stated that defendant's answer, a general denial only, was subject to a motion to strike and therefore that evidence as to failure of consideration could not be allowed. This opinion was one concerning the legal effect of a pleading; the opinions, expression of which is forbidden by Code 81-1104, are those relating to facts.
3. Special ground 2 is that the "court refused to allow the defendant to get into the question as to the quality of the blankets." In addition to the infirmity mentioned above, i.e., general denial only filed, there is no showing of what the witness was expected to testify or the materiality of his testimony. Leverett, Hall & Christopher, Ga. Procedure & Practice, 491, 22-4 (5).
4. "An exception based upon the refusal of the court to award a nonsuit will not be considered, where subsequently thereto the case is submitted to the jury, and after verdict being for the plaintiff a motion for new trial is made which presents the complaint that the verdict is contrary to the evidence and without evidence to support it." Venable v. Gresham, 105 Ga. App. 720 (3) (125 SE2d 507). None of the grounds showing error, the judgment overruling the motion for new trial is affirmed.
Walter V. Beasley, for plaintiff in error.
DECIDED APRIL 2, 1963.
Friday May 22 22:05 EDT


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