Wallace v. Easterwood

Carlisle, Judge.

1. The complaint in the first special ground of the motion for a new trial that the judge erred in his instructions to the jury in reading a paragraph of the plaintiff’s petition relating to the plaintiff’s medical -expenses in the amount of $400-, which paragraph had been stricken on demurrer, fails to show harmful error where the record in the case shows that the -trial court thereafter granted a new trial, unless the plaintiff write $400 off from the verdict, which order was complied with by the plaintiff. Assuming, but not deciding, that the inadvertent reading by the trial judge of the portion of the plaintiff’s petition which had been stricken was error, any harmful effect was remedied by the subsequent writing off by the plaintiff of $400 from the verdict and judgment.

2. The second special ground of the motion for a new trial complains of error because the court disallowed an amendment proffered by the defendant. This ground of the motion presents no question for consideration inasmuch as rulings on pleadings cannot be complained of in a motion for a new trial. Fechtel v. Chastain, 79 Ga. App. 517, 518 (54 S. E. 2d 459); C. G. Aycock Realty Co. v. Burrowes, 81 Ga. App. 560 (4b) (59 S. E. 2d 406); Padgett v. Reaves, 86 Ga. App. 137 (2) (70 S. E. 2d 922); Hall v. First National Bank of Atlanta, 89 Ga. App. 853, 856 (4b) (81 S. E. 2d 522).

3. The general grounds of the motion for a new trial are expressly abandoned by counsel for the plaintiff in error in their brief in this court and are not passed upon.

Decided February 19, 1959 Rehearing denied March 6, 1959. Howe & Murphy, Harold L. Murphy, D. B. Howe, for plaintiff in error. Murphy & Murphy, Thomas B. Murphy, contra.

Judgment affirmed.

Gardner, P.J., and Townsend, J., concur.