Opinion
17766.
ARGUED FEBRUARY 11, 1952.
DECIDED MARCH 10, 1952.
Equitable petition. Before Judge Pratt. Gwinnett Superior Court. November 16, 1951.
W. L. Nix and A. G. Liles, for plaintiffs in error.
O. N. Pharr, R. F. Duncan, M. H. Allison and Chas. C. Pittard, contra.
1. In an equity case such as this, in which the plaintiff seeks to impress upon described property an implied resulting trust because of the alleged payment by the plaintiff of the purchase price of the property and the placing of the title thereto in one of the defendants, and to enjoin the cutting of timber thereon by the defendants, the presiding judge may in his discretion submit special issues of fact to the jury, under the Code, § 37-1104, without the request of either party. Hardin v. Foster, 102 Ga. 180 ( 29 S.E. 174); McWhorter v. Ford, 142 Ga. 554 (5) ( 83 S.E. 134).
2. "Objections to the submission by the judge of questions to the jury for the rendition of a special verdict in an equity cause, under the Code, § 37-1104, can not be made for the first time in a motion for new trial; but as to any improperly submitted or omitted question, the attention of the judge should first have been called thereto at the time the questions were submitted. McWhorter v. Ford, 142 Ga. 554 (5 a) ( 83 S.E. 134); Brown v. Brown, 192 Ga. 852, 858 ( 16 S.E.2d 853); Jefferson v. Hamilton, 69 Ga. 401." City of Atlanta v. Carroll, 194 Ga. 172 (2) ( 21 S.E.2d 86). Accordingly, the several grounds of the amendment to the motion for a new trial complaining only of the propriety of the question as submitted to the jury, and the omission by the judge to submit other alleged appropriate questions and issues of fact to the jury, and the law applicable thereto, cannot be considered, it not appearing that the attention of the judge was called thereto at the time of the submission of the case to the jury.
3. The evidence supported the verdict on the question submitted, and the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed. All the Justices concur.