Luke v. McSwain

Hill, J.

1. This was a suit on a promissory note signed by Taylor, McSwain, and Bass. No plea or answer was filed by either Taylor or Bass, and there is nothing in the record to show that either was a necessary party to the bill of exceptions. The motion to dismiss the bill of exceptions because they were not parties is overruled.

2. A number of the exceptions were based upon objections to the'judgment overruling demurrers to the defendant’s answer, in which judgment it was recited that the demurrers were overruled upon each and every ground therein, after amendment by the defendant; and in the bill of exceptions the amendment is specified as a part of the record in the case, but it was not sent up as a part of the record. The clerk of the lower court certified that no such améndment was filed, and, no diminution of the record having been suggested by counsel for the plaintiff in error, these exceptions present- nothing for this court to pass upon.

3. Grounds of the motion for a new trial predicated upon any ruling or charge of the court touching the answer filed by the defendant cannot be passed upon by this court, as the amendment to the answer, specified as a part of the record, was not sent up as a part of the record.

Decided June 6, 1921.

Complaint; from Ben. Hill superior court — Judge Gower. February 11, 1921.

D. E. Griffin, for plaintiff. A. J. & J. C. McDonald, for defendant.

4. This is the second verdict in favor of the defendant. There was evidence to sustain the verdict, and the charge of the court was not subject to the objections made thereto. The charge fully and clearly submitted to the jury the law covering the case, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.