Opinion
24412.
SUBMITTED DECEMBER 12, 1967.
DECIDED JANUARY 4, 1968.
Cancellation, etc. Fulton Superior Court. Before Judge Tanksley.
John C. Tyler, for appellant.
Hugh W. Gibert, Richard N. Hubert, for appellee.
On September 10, 1964, Sam Tate filed an action against Thomas J. Northcutt seeking the cancellation of a note and deed to secure debt, for alleged fraud in the procurement. The defendant's general demurrer to the petition was overruled on June 9, 1965, and such judgment stands unreversed. On the trial of the case the defendant's motion for a directed verdict was overruled and the jury returned a verdict for the plaintiff. Thereafter, the trial court overruled the defendant's motion for a judgment non obstante verdicto and motion for a new trial. It is from such judgments that the defendant appeals. The sole enumerations of error are on the judgments denying a judgment non obstante veredicto and a new trial. Held:
1. While under the decision in Southern Bell Tel. Tel. Co. v. Brackin, 215 Ga. 225 ( 109 S.E.2d 782), a judgment non obstante veredicto is proper where the petition fails to set forth a cause of action and such question has not been previously adjudicated, yet where a general demurrer to a petition has been overruled and stands unreversed such judgment establishes the law of the case that the petition does set forth a cause of action. See Kicklighter v. Kicklighter, 217 Ga. 54 ( 121 S.E.2d 122); Simmons v. Watson, 221 Ga. 765 ( 147 S.E.2d 322); Gibson v. Hodges, 222 Ga. 434 ( 150 S.E.2d 651). Thus in the present case where the defendant's general demurrer was overruled and such judgment stands unreversed the sole question for decision is whether the plaintiff proved his case as laid. If so, and the defendant's evidence merely contradicts such evidence as offered by plaintiff, the verdict of the jury finding for the plaintiff will not be disturbed.
2. While the evidence adduced upon the trial of the case was conflicting, the jury was authorized to accept the plaintiff's version of the circumstances leading up to the execution of the note and deed to secure debt. Accordingly, the verdict was authorized by the evidence and the judgment of the trial court overruling the defendant's motion for new trial, and his motion for a judgment non obstante veredicto was not error for any reason assigned.
Judgments affirmed. All the Justices concur.