Smiley v. Smiley , 144 Ga. 546 ( 1916 )

Atkinson, J.

Exceptions pendente lite, though duly allowed and ordered filed as a part of the record, upon which no error was originally assigned in the main bill of exceptions, and upon which counsel made no assignment of error before the argument of the case, will not be considered by this court. Jones v. Kagan, 136 Ga. 653 (7), 655 (71 S. E. 1098); Atlantic & Birmingham R. Co. v. Penny, 119 Ga. 479 (46 S. E. 675); Civil Code, § 6138.

2. Grounds of a motion for new trial which are incomplete, and can not be understood without resorting to an examination of the brief of evidence, fail to present any question for decision. Head v. State, 144 Ga. 383 (87 S. E. 273); Sims v. Sims, 131 Ga. 262 (62 S. E. 192).

3. A new trial will not be granted on account of newly discovered evidence, where it is not made to appear by affidavit of the movant and each of his counsel that they did not know of the existence of such evidence before the tidal, and that the same could not have been discovered by the exercise of ordinary diligence. Civil Code, §§ C085-6086.

4. To entitle a plaintiff to a decree for specific performance of a parol contract for the sale of land, the contract must be first established with reasonable certainty, and the consideration claimed to have been paid must be clearly and satisfactorily proved to have been paid in pursuance of that contract; otliei-wise specific performance of the alleged contract should be refused. Shropshire v. Brown, 45 Ga. 175.

(a) The evidence in this case being insufficient to show the terms of the alleged parol contract for the sale of the land, a verdict for the plaintiffs was unauthorized.

Judgment reversed.

All the Justices conew, except Fish, O. J., absent.

Specific performance. Before Judge Sheppard. Liberty superior court. Au-S11^ 12, 1914.

W. B. Stubbs and Parker & Walker, for plaintiff in error. W. C. Hodges and Paul E. Seabrook, contra.