Carter v. Johnson ( 1900 )

Lumpkin, P. J.

1. Since sustaining a demurrer to an affidavit of illegality would leave nothing to be tried, it is manifest that the overruling of such a demurrer can not properly be made a ground of a motion for a new trial. See, in this connection, Willbanks v. Untriner, 98 Ga. 861; Holleman v. Bradley Co., 106 Ga. 157; Cleveland v. State, 109 Ga. 265.

2. A direct assignment of error upon a ruling made during the progress of a trial comes too late if for the first time presented in a bill of exceptions sued out more than thirty days after the adjournment of the term at which such ruling was made. Civil Code, § 5539; Dietz v. Fahy, 107 Ga. 325, and cases cited.

3. The evidence warranted a finding in favor of the prevailing party, and there was no abuse of discretion in denying a new trial.

Judgment affirmed.

All the Justices concurring.