47 S.E.2d 201 | Ga. Ct. App. | 1948
Where in the trial of a bail-trover action there was no allegation in the petition that the property sought to be recovered had a value for hire, and there was no evidence that it had a value for hire, it was error *664 for the court to charge the jury that it was authorized to find that, if the property was tendered to the marshal without the tender of reasonable hire, they could find for the plaintiff the highest proved value of the property, when the evidence would have authorized a finding that the defendant tendered the property without hire, which under the pleadings and the evidence would have authorized a verdict for the defendant.
2. Exceptions to the overruling of the motion to dismiss and exceptions to the overruling of the defendant's plea in abatement are not proper grounds of a motion for a new trial.
Judgment reversed. Sutton, C. J., and Parker, J., concur. *667