Dunn v. Goodrich Rubber Co.

Bell, J.

This was a suit upon an account. The defendant filed a plea, but withdrew it. The ease does not appear to have been marked in default. When it was called for trial the court, in the absence of the defendant, directed a verdict in favor of the plaintiff, without requiring the introduction of evidence. The defendant filed a motion for a new trial, but was unable, of course, to furnish a brief of evidence. The motion was overruled, and the defendant excepted. Held: 1. “Where one who is dissatisfied with a verdict seeks to set it aside by a motion for a new trial, a brief of the evidence is an indispensable requisite to the validity of the motion. In other words, if there is no brief of evidence, the so-called motion for a new trial goes for naught, and the action of the trial judge either in overruling it or dismissing it, will be affirmed. . . Civil Code (1910), §§ 6093, 6306; Whitaker v. State, 138 Ga. 139 (1), 140 (75 S. E. 254); Baker v. Johnson, 99 Ga. 374 (32 S. E. 22); Mize v. Americus Mfg. Co., 106 Ga. 140 (32 S. E. 22); Holloman v. Small, 111 Ga. 812 (1) (35 S. E. 665); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654); Price v. Price, 122 Ga. 321 (50 S. E. 91). The so-called motion for a new trial in this case was [necessarily] possessed of the defect mentioned, and therefore no error was committed in overruling it.” Turner v. Spell Live Stock Co., 31 Ga. App. 343 (120 S. E. 786).

Decided April 24, 1924. O. J. Lester, for plaintiff in error. Hobbs & Barrett, contra.

2. It follows from the above that where an answer to a suit upon an account is withdrawn, and a verdict and judgment are thereupon rendered for the plaintiff, without evidence, as in cases of default, though no entry of default is made, a motion for a new trial is not the proper proceeding for avoiding the verdict and judgment. Turner v. Spell Live Stock Co., supra.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.