Jacoby v. Jacoby ( 1957 )

Townsend, J.

“ ‘Where there is no motion for a new trial, and the exception is that the direction of the verdict is contrary to law, contrary to the evidence, and contrary to the principles of justice and equity, there is no point presented which can be considered by this court.’ Beall v. Mineral Tone Co., 167 Ga. 667 (146 S. E. 473).” Kenny v. Hannah, 211 Ga. 545 (87 S. E. 2d 51). See also Chandler v. Pennington, 89 Ga. App. 676 (6) (80 S. E. 2d 843); Wight Hardware Co. v. American Lubricants Co., 91 Ga. App. 339, 345 (1) (85 S. E. 2d 507). Accordingly, in the present case, there being no motion for new trial, and the sole assignment of error being as follows: “To this order . . . directing said verdict, and to said verdict, and to the judgment entered thereon, the defendant then and there excepted and now excepts and assigns the same as error as being contrary to law and the evidence adduced in said case and says that the judge presiding should have denied the motion for a directed verdict and should not have directed a verdict and should not have permitted judgment to be entered thereon and filed in said court,” the motion of the defendant in error to dismiss the bill of exceptions for lack of a proper assignment of error must be granted. Under the above authorities, the exception that the direction of the verdict is contrary to law means merely that the preponderance of evidence was in favor of the losing party, and the exception that it is contrary to the evidence merely questions the sufficiency of the evidence, to do which a motion for a new trial is indispensable.

Decided June 17, 1957. Mitchell, Clarke & Anderson, Edward D. Wheeler, for plaintiff in error. T. Emory Daniel, Jr., James A. Mackay, contra.

Writ of error dismissed.

Gardner,P.J.,and Carlisle, J.¡concur.