Dean v. Ross

The court did not err in overruling the motion to strike the defendant's answer, or in overruling the plaintiff's motion for new trial.

DECIDED FEBRUARY 15, 1940. REHEARING DENIED MARCH 11, 1940. 1. An alleged statement of facts not being set forth in the bill of exceptions or made a part of the same as an exhibit and properly authenticated, what purports to be an agreed statement of facts, specified in the bill of exceptions as such and sent up as part of the record, but not approved by the judge and ordered filed, can not be considered by this court.Continental Life c. Insurance Co. v. Hand, 24 Ga. App. 476 (101 S.E. 193); Federal Investment Co. v. Ewing, 165 Ga. 435 (141 S.E. 65). The assignments of error necessitating a consideration of the evidence can not be considered. It was not error to overrule the motion for new trial.

2. The assignment of error on the exceptions pendente lite is without merit. The exception is to the judgment refusing to strike the entire answer on written motion in the nature of a general demurrer. The answer denied the material allegations of the petition. The plaintiff's contention was that the defendant, in his capacity as administrator, had rented out lands and had applied all the rents on claims of equal or inferior dignity to the plaintiff's claim, and had paid the plaintiff nothing, and therefore had committed a devastavit. The answer alleged that the defendant had rented out said lands every year since he had been administrator, and that he had used the rent money to pay semi-annual instalments due on a loan made to his intestate, which was secured by the land rented; that he had no money of the estate with which to make said payments, and that no money belonging to the estate was used in the making of any of the payments. The foregoing allegations and the further allegations in the answer that soon after defendant qualified as administrator he exposed the lands for sale without avail, and again in December, 1937, can not be said to demand the conclusion as a matter of law that the defendant had rented the land in his capacity as administrator. It was not error to overrule the motion to strike the entire answer.

Judgment affirmed. Stephens, P. J., and Sutton, J., concur.