Opinion
35834.
DECIDED OCTOBER 11, 1955. REHEARING DENIED OCTOBER 25, 1955.
Action for broker's commission. Before Judge Henson. Fulton Civil Court. June 28, 1955.
Brackett Brackett, R. B. Pullen, for plaintiff in error.
Haas, Holland Blackshear, M. H. Blackshear, Jr., contra.
1. Rulings upon the sufficiency of the pleadings are not proper grounds of a motion for new trial.
2. There was evidence to support the judgment of the trial court hearing the case without the intervention of a jury.
DECIDED OCTOBER 11, 1955 — REHEARING DENIED OCTOBER 25, 1955.
Burton Realty Company, a partnership composed of A. C. Burton and Edna M. Burton, brought an action against McJenkin Insurance Realty Company to recover a broker's commission for the sale of certain real estate for the defendant. The petition as originally filed was in two counts; count one on an express contract, and count two on quantum merit. The defendant's general demurrer was sustained as to count one and overruled as to count two. The plaintiff then amended count two of the petition to include those paragraphs of count one that had previously been a part of count two only by reference. A motion by the defendant to strike the plaintiff's amendment to count two of the petition was overruled. The trial judge hearing the case without the intervention of a jury rendered a judgment for the plaintiff. The defendant filed a motion for new trial on the usual general grounds which was later amended to include two special grounds. The motion for new trial as amended was denied and it is to this judgment that the defendant excepts.
1. The special grounds of the motion for new trial complain that the trial court erred (1) in overruling the general demurrer to count two of the petition as originally filed, and (2) in overruling the defendant's motion to strike the plaintiff's amendment to count two of the petition. "Rulings upon the sufficiency of the pleadings are not proper subject matter for a motion for a new trial." Union Brokerage Co. v. Fine, 30 Ga. App. 788 ( 119 S.E. 343); Fechtel v. Chastain, 79 Ga. App. 517 ( 54 S.E.2d 459). Accordingly, the special grounds of the motion for new trial cannot be considered.
2. On the trial of the case there was evidence that the plaintiff, a duly licensed realty company, procured for the defendant a purchaser for certain real property, and that the defendant sold this property to the purchaser procured by the plaintiff. Accordingly, there was some evidence to support the judgment of the trial court hearing the case without the intervention of a jury. Therefore the trial court did not err in denying the defendant's motion for new trial for any reason assigned.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.