Opinion
35693.
DECIDED JUNE 2, 1955.
Claim. Before Judge Mitchell. DeKalb Civil Court. March 9, 1955.
Augustus M. Roan, Mark T. Hartman, III, for plaintiff in error.
Joseph D. Tindall, Jr., contra.
1. The refusal of the trial court to dismiss an action for lack of jurisdiction is not a proper ground of a motion for new trial.
2. Nor is the denial of a motion for a jury trial a proper ground of such a motion.
3. The evidence was sufficient to support the judgment of the trial court hearing the case without the intervention of a jury, and the court did not err in denying the motion for new trial on the general grounds.
DECIDED JUNE 2, 1955.
A Deputy Sheriff of DeKalb County levied on a 1952 Cadillac automobile under a judgment obtained against Ralph Nash by John Mayeske in the Civil Court of DeKalb County. Clyde Owen interposed his claim and filed the proper bond. The case was heard by the Judge of the Civil Court of DeKalb County without the intervention of a jury, and on January 6, 1955, he rendered judgment for the claimant. The plaintiff in fi. fa., John Mayeske, filed his motion for new trial on the general grounds, which he later amended to include two special grounds. The trial court denied this motion as amended, and the plaintiff in fi. fa. excepted.
1. The second special ground of the motion for new trial complains that the trial court erred in denying the motion of the plaintiff in fi. fa. to dismiss the claim upon the ground that the trial court was without jurisdiction. The refusal of the trial court to dismiss the action for lack of jurisdiction is not a proper ground for a motion for new trial, and as here presented cannot be considered. Nesmith v. Mohr Sons, 7 Ga. App. 558 (2) ( 67 S.E. 221); Jarrard v. Wildes, 87 Ga. App. 30, 31 ( 73 S.E.2d 116).
2. The first special ground complains that the trial court erred in denying the motion of the plaintiff in fi. fa. for a trial before a jury on the facts. A ruling on a motion for a trial before a jury falls within the category of a ruling on the pleadings or other preliminary rulings, and the assignment of error thereon is not a proper ground of a motion for a new trial. Fechtel v. Chastain, 79 Ga. App. 517, 518 ( 54 S.E.2d 459); Padgett v. Reeves, 86 Ga. App. 137 (2) ( 70 S.E.2d 922). See also Krasner v. Croswell, 76 Ga. App. 373 ( 45 S.E.2d 800).
3. The plaintiff in fi. fa. contends that the judgment was without evidence to support it, and decidedly against the weight of the evidence. There was evidence that the claimant was the holder of a conditional-sale contract covering the property levied on, that such conditional-sale contract was recorded prior to the time when the plaintiff's fi. fa. was recorded, and that the conditional-sale contract was not redeemed. Accordingly, there was evidence to support the judgment of the trial judge, hearing the case without a jury, and there was no error in the judgment denying the motion for new trial on the general grounds.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.