Eubanks v. Taylor , 74 Ga. App. 243 ( 1946 )

1. Where in an action upon a promissory note the defendant in his plea and answer seeks to avoid payment of the note upon the sole ground that the note has been materially altered since he signed it, and upon an oral motion in the nature of a general demurrer the plea and answer is stricken, the case is in default and the plaintiff is entitled to a directed verdict. Lunsford v. Howe, 71 Ga. App. 106 (3) S.E.2d, 207); Pape v. Woolford Realty Co., 35 Ga. App. 284 (134 S.E. 174); Pierce v. Jones, 36 Ga. App. 561 (137 S.E. 296); Hayes v. International Harvester Co., 52 Ga. App. 328 (183 S.E. 197).

2. Where in such a case a verdict is directed, it is not error for the court to refuse a new trial, the verdict being demanded.

3. An assignment of error upon a judgment sustaining a demurrer to a plea and answer, rendered more than nine months prior to the tender of the bill of exceptions, in the absence of exceptions pendente lite duly filed, is not tendered within the time required by statute and cannot be considered by this court. Avery v. Graham, 26 Ga. App. 161 (105 S.E. 708); Heery v. Burkhalter, 113 Ga. 1043 (39 S.E. 406).

4. The striking of the answer is in no event the subject-matter of a motion for a new trial (Roles v. Edwards, 49 Ga. App. 527, 176 S.E. 106; Sims v. Ga. Ry. Elec. Co., 123 Ga. 643, 51 S.E. 573; Little v. Yow, 69 Ga. App. 335, 25 S.E.2d 232); and an assignment of error upon the refusal of a new trial in a motion containing this ground presents no question for decision by this court. Hayes v. Hannah, 61 Ga. App. 86 (5 S.E.2d 782).

5. In view of what has been said in headnotes 1 and 2, there is no merit in the assignment of error contained in ground one of the amended motion for new trial, complaining of the admission of evidence tending to combat the defense set up in the stricken plea and answer, as its introduction was harmless.

The court did not err in overruling the motion for new trial for any reason assigned.

Judgment affirmed. Sutton, P. J., and Parker,J., concur.

DECIDED SEPTEMBER 19, 1946.