Scales v. Neal , 96 Ga. App. 168 ( 1957 )

96 Ga. App. 168 (1957) 99 S.E.2d 498

SCALES
v.
NEAL.

36751.

Court of Appeals of Georgia.

Decided July 2, 1957.

J. T. Sisk, for plaintiff in error.

A. S. Skelton, Johnson & Johnson, Marshall L. Allison, contra.

NICHOLS, J.

1. The petition as originally filed, to which no objection was made according to the record before this court, alleged that the lease had been terminated on a certain date because it had been breached in certain respects by the defendant. The notice, allegedly given to the defendant, attached as an exhibit to the original petition states how, "among others," the lease agreement had been breached; and the amendment which was allowed over objection, merely elaborated on the violations of the lease agreement. The petition as originally filed sought possession of certain realty allegedly owned by the plaintiff because the defendant had allegedly breached his lease agreement. The petition, as amended, sought possession of this same realty because the defendant had allegedly breached this same lease agreement. No new cause of action was set forth in the amendment, and it was not subject to objections. Therefore, the trial court did not err in overruling these objections.

2. The defendant's motion for new trial was not accompanied by a brief of the evidence adduced on the trial of the case, and under the decision of this court in Gulick v. Mulcahy, 95 Ga. App. 158 (97 S.E.2d 362), and the cases cited therein, the judgment of the trial court denying the motion for new trial must be affirmed, for, although the ruling complained of in such amended motion for new trial may have been error, there is no way for this court to determine if such error was harmful.

Judgment affirmed. Felton, C. J., and Quillian, J., concur.