Opinion
33357.
DECIDED JANUARY 27, 1951.
Complaint; from Fulton Civil Court — Appellate Division. September 28, 1950.
Robert B. Blackburn, for plaintiff in error.
Harris, Henson, Spence Gower, contra.
1. Ground 6 of the motion for a new trial, complaining of the overruling of a motion to dismiss the action, is without merit, as such is not a proper ground for a motion for a new trial. And the assignment of error on the overruling of the motion to dismiss cannot be considered, as the objection to the overruling of the motion was not preserved by exception pendente lite within the time provided by law. Ga. L. 1933, p. 293, § 42(b); Glass v. Brown, 49 Ga. App. 610(1) (176 S.E. 519); Ozburn v. National Union Fire Ins. Co., 53 Ga. App. 682(1) (186 S.E. 852).
2. Where the defendant admitted receiving all of the moneys sued for, and the only reason which he gives for contending that he does not owe the account is that he was sent by the plaintiff into a territory which had been worked, but which the plaintiff had told him had not been worked, and where the evidence as to this was conflicting, the court, sitting as a trior of facts, was authorized to return a verdict in favor of the plaintiff for the amount sued for.
3. As the defendant admitted receiving the moneys shown in the bill of particulars, it was not harmful for the court to allow a copy of said bill of particulars to be introduced in evidence.
The Appellate Division of the Civil Court of Fulton County did not err in affirming the judgment of the trial division of that court.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
DECIDED JANUARY 27, 1951.
H. N. Simms sued Millard Sanders in the Civil Court of Fulton County upon an open account. Incorporated in the verified petition was a bill of particulars, which set out advances to and credits of the defendant with a balance in favor of the plaintiff of $233.54 recited, for which sum the plaintiff prayed judgment. The defendant admitted getting all the moneys as shown in the account, but contended that he owed the plaintiff nothing, as the defendant had lost more money than that sued for, "chasing vague leads" in a territory which that plaintiff had represented to him as not having been worked, but which had, in fact, been worked. The court, sitting without the intervention of a jury, found for the plaintiff in the amount sued for. The defendant's oral motion for a new trial was overruled, and he appealed to the Appellate Division of the Civil Court of Fulton County, assigning as error the overruling of the motion for a new trial and the overruling of his oral motion to dismiss the action. The Appellate Division affirmed the judgment of the trial division, and the defendant excepts.