32 Ga. App. 202 | Ga. Ct. App. | 1924
This was a suit upon an account. The defendant filed a plea, but withdrew it. The ease does not appear to have been marked in default. When it was called for trial the court, in the absence of the defendant, directed a verdict in favor of the plaintiff, without requiring the introduction of evidence. The defendant filed a motion for a new trial, but was unable, of course, to furnish a brief of evidence. The motion was overruled, and the defendant excepted. Held: 1. “Where one who is dissatisfied with a verdict seeks to set it aside by a motion for a new trial, a brief of the evidence is an indispensable requisite to the validity of the motion. In other words, if there is no brief of evidence, the so-called motion for a new trial goes for naught, and the action of the trial judge either in overruling it or dismissing it, will be affirmed. . . Civil Code (1910), §§ 6093, 6306; Whitaker v. State, 138 Ga. 139
2. It follows from the above that where an answer to a suit upon an account is withdrawn, and a verdict and judgment are thereupon rendered for the plaintiff, without evidence, as in cases of default, though no entry of default is made, a motion for a new trial is not the proper proceeding for avoiding the verdict and judgment. Turner v. Spell Live Stock Co., supra.
Judgment affirmed.
