Martin v. Mills , 67 Ga. App. 424 ( 1942 )

1. The court did not err in refusing to continue the case on account of the absence of a witness where the showing made by the applicant did not meet the requirements of the Code.

2. It is never error to refuse to direct a verdict.

3. Grounds of a motion for new trial which are not complete within themselves will not be considered.

4. There is no merit in special ground 5 of the motion.

5. Where the grounds of a motion for new trial are allowed and ordered filed as a part of the record, they will be considered as having been approved, where no point as to the sufficiency of the approval was made in the court below, and the judge passed generally on the motion as amended. 6. The evidence supported the verdict.

DECIDED MAY 30, 1942. Ralph Mills foreclosed a laborer's lien in a justice's court against C. C. Martin. There was a judgment for the plaintiff, and on an appeal to a jury in the superior court the jury found for the plaintiff. The defendant filed a motion for new trial which was overruled and he excepted.

1. The first ground of the amended motion complains of the refusal of the court to grant a continuance on account of the absence of a witness for the defendant. There was no error in this ruling because on a showing made the defendant did not show that the absence of the witness was without permission of the applicant, that he expected to be able to procure the testimony of such witness at the next term of the court, that his testimony was material, and that the application was not made for the purpose of delay. In the absence of such showing the court properly refused to grant a continuance. Code § 81-1410.

2. Grounds 2 and 6 complain that the court refused to direct a verdict for the defendant. It has been held numbers of times that it is never error to refuse to direct a verdict. Code, Ann., § 110-104, catchword "Refusal."

3. Grounds 3 and 4 complain of the allowance of certain testimony over objection. These grounds are not complete because it is not shown wherein the testimony was harmful to the defendant.

4. There is no merit in ground 5 of the motion.

5. It is contended by defendant in error that the grounds of the amended motion were not approved by the judge. Grounds of a motion for new trial which have simply been allowed and ordered filed as a part of the record in a case will be considered as having been approved where no point on the sufficiency of the approval was made in the court below and the judge passed generally on the motion as amended. Price v. State, 170 Ga. 294 (152 S.E. 572); Nix v. Nix, 55 Ga. App. 776 (191 S.E. 381).

6. The evidence supported the verdict. The court did not err in overruling the motion for new trial.

Judgment affirmed. Sutton, J., concurs. Stephens, P. J.,concurs in the judgment.