56 Ga. App. 583 | Ga. Ct. App. | 1937
I. Where a distress warrant is issued and levied on personal property, and a1 claim and forthcoming bond therefor are made and filed by a third party, and the property is found subject on the trial of the claim and is advertised for sale, but is not produced at the time and place of sale, such failure to produce constitutes a breach of the bond; and a suit thereafter filed against the principal and sureties on such bond is not prematurely brought because the defendant in the distress-warrant proceeding had filed a counter-affidavit to said proceeding after the breach of the bond had occurred and suit had been filed thereon.
2. The exception to the refusal of the court to give in charge to the jury the special request can not be considered, as it is not shown that such request was adjusted to the pleadings and .evidence, or that it was not covered by the general charge, and the charge of the court was not sent up as a part of the record in this case, or that the defendants were harmed by the failure to give said request in charge.
3. A refusal to grant a nonsuit will not be considered where it appears that the case was submitted to and passed on by a jury, and a; motion for new trial was made which contained a ground that the verdict Was contrary to the evidence and without evidence to support it. Columbia Fire Insurance Co. v. Tatum, 46 Ga. App. 475, 477 (167 S. E. 911); Southern Railway Co. v. Slaton, 178 Ga. 314 (173 S. E. 161).
4. An order overruling a demurrer is not a proper ground of a motion for new trial, and an assignment of error on such a ground can not be considered.
5. Error is assigned on the failure of the court to write out its charge
6. The other assignments of error are without merit; and as a new trial is being granted, it is not necessary to pass on the sufficiency of the evidence to support the verdict.
Judgment reversed.