Anthony v. Garrett

236 Ga. 485 (1976) 224 S.E.2d 347

ANTHONY et al.
v.
GARRETT.

30524.

Supreme Court of Georgia.

Submitted November 25, 1975. Decided February 24, 1976. Rehearing Denied March 11, 1976.

Oze R. Horton, for appellants.

Harold A. Lane, for appellee.

NICHOLS, Chief Justice.

This appeal results from a judgment overruling the appellants' motion for new trial after a jury verdict for the defendant in the trial court in a land line dispute.

1. Where the trial court overrules a motion to dismiss for failure to state a claim, the plaintiff has not been harmed by the refusal of the trial court to strike such defensive pleading.

2. A defense which specifically admits some and specifically denies other paragraphs of the complaint is not subject to a motion to strike.

3. Where, as in the present case, the trial court refused to submit to the jury the defendant's contentions that he should recover attorney fees, any error in refusing to strike such counterclaim shows no harmful error to the plaintiff.

4. The contention is made that the trial court erred in permitting two witnesses to testify for the defendant when their names had not been furnished the plaintiff as required by the pre-trial order entered in such case. No objection was made to these witnesses testifying on the trial of the case and such question cannot be raised for the first time after verdict.

5. No error is shown by the grounds of the motion for new trial complaining of the admission and exclusion of documentary evidence.

6. Where, as in this case, no objection was made to the court's charge prior to verdict and no contention that such charges constituted substantial error could be made, no question for appellate review is presented by enumerations of error contending that the trial court erred in instructing the jury. Compare Reynolds v. Huckeba, 231 Ga. 792, 794 (204 SE2d 149) (1974); Harper v. Harper, 233 Ga. 253 (210 SE2d 773) (1974).

7. Where, as in this case, the evidence was conflicting as to the location of the property line in dispute but the evidence authorized the jury to find in accordance with the defendant's contentions, the judgment of the trial court overruling the plaintiff's motion for new trial shows no error.

Judgment affirmed. All the Justices concur.