Olshine v. Bryant

Broxbes, O. J.

1. It appearing from the transcript of the record and the admissions in the brief of counsel for the plaintiff in error that the defendant filed no objection to the allowance of the amendment of the plaintiff’s petition which was allowed on May 24, 1935, the ques-' tion whether the amendment was properly allowed is not before this court. While it is alleged in the bill of exceptions that the defendant objected to the allowance of the amendment, this allegation is refuted by the record; and it is well settled that where there is a conflict between the allegations in the bill of exceptions and the record, the record controls.

2. There is no provision of law that notice of an amendment to a petition shall be given to the defendant. Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525); General Accident Cor. v. Way, 20 Ga. App. 106 (2-a) (92 S. E. 650).

3. Appearance and pleadings to the merits is a waiver of all irregularities of the process, or of the absence of process and the service thereof. Executive Committee v. Smith, 44 Ga. App. 184 (2) (161 S. E. 143).

4. Where a defendant appears and pleads to the merits of a case, without pleading to the jurisdiction of the court, and without excepting thereto, he thereby admits the jurisdiction of the court, and can not thereafter urge the jurisdictional question. Code, § 81-503; Hudgins Co. v. Redmond, 178 Ga. 317 (173 S. E. 135).

5. Under the foregoing rulings the court did not err in overruling the defendant’s motions to dismiss the case.

6. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for new trial containing the general grounds only.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.