Lewis v. Cairo Banking Co.

Bloodwortii, J.

1. Under the ruling in Walker v. City of Cairo, 31 Ga. App. 307 (121 S. E. 138), the exceptions pendente lite in this • case were not filed too late for consideration by this court. See also Herz v. Frank, 104 Ga. 638 (30 S. E. 797); Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338 (2) (66 S. E. 979).

2. The exceptions pendente lite assign error upon the ruling of the court disallowing a proffered amendment to the defendant’s plea, the amendment being that the note sued upon was totally without consideration. The original plea embodied an allegation which, in substance, alleged that the plaintiff had received no consideration whatever for the note sued upon, and the defendant’s evidence tended to sustain this allegation. Therefore the proffered amendment, alleging a total failure of consideration, was substantially covered by the original answer. Conceding, therefore, that the court erred in disallowing the amendment this error was harmless, especially in view of the ruling of the court when disallowing the amendment that the case could be reopened for any proof under the original plea.

Decided January 16, 1924. Adhered to on rehearing, March 1, 1924. W. H. Duchworth, for plaintiff in error. 8. P. Gain, contra.

3. Under the facts of this case and the qualifying note of the presiding judge to the only special ground of the motion for a new trial, there is no merit in that ground.

4. Neither the bill of exceptions nor any ground of the motion for a new trial complains of the direction of the verdict. Therefore, under repeated rulings of the Supreme Court and of this court, the verdict will not be ■ disturbed if there is any evidence to sustain it. In this case the burden of proof was upon the defendant to defeat the plaintiff’s suit by a preponderance of the evidence, and, under all the facts of the case, this court cannot hold that the trial court erred in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., concurs. Luke, J., disqualified.