60 Ga. App. 72 | Ga. Ct. App. | 1939
The plaintiff sued the defendant in the municipal court of Atlanta for $231 on notes. The defendant filed an answer in which he alleged only that for lack of information he could neither admit nor deny the allegations of the plaintiff’s petition. The plaintiff moved to strike the answer, and the defendant amended his answer by alleging that “this defendant denies that he received the principal sum sued for in said notes, and that he did
Section 42(a) of the act of 1933 (Ga. L. 1933, pp. 290, 292) provides that upon the. rendition of a verdict or judgment in the municipal court of Atlanta any party to said cause may make an oral motion for new trial, where the amount involved is less than $300, and the court may hear the motion instanter or at such time as may be set for a hearing, and no brief of the evidence shall be necessary. Section 42(b) of that act provides: “Should the judge decline to grant said oral or written motion for new trial, as the ease may be, he shall pass an order to that effect. All rulings of the trial court which under the practice in the superior.court would be the subject-matter of final bill of exceptions, cross-bill of exceptions, or exceptions pendente lite, shall likewise be the subject-matter of such exceptions in this court, and such exceptions shall be presented to the trial judge within fifteen days from the date of the ruling complained of, and ordered filed and transmitted to the appellate division of said court or to the Court of Appeals or the Supreme Court, as the case may be, as hereinafter provided for in case of appeals to said appellate division or bills of exceptions to
It is true that where an appeal is made to the appellate division of the municipal court of Atlanta from an order overruling an oral motion for new trial, the appellant shall within fifteen days from such order file a written statement of the grounds of his motion, assigning error on the order overruling such motion, together with a brief of the evidence. Sec. 42(d) of act of 1933 (Ga. L. 1933, pp. 290, 293); Jeter v. Turman-Brown Co., 169 Ga. 30 (149 S. E. 555); Branon v. Ellbee Pictures Cor., 40 Ga. App. 450 (150 S. E. 168); Coppedge Dry Cleaning Co. v. Levine, 41 Ga. App. 382 (153 S. E. 206); Cohen v. Morris Plan Co., 43 Ga. App. 84 (157 S. E. 913); Cooksey v. Roseberry, 43 Ga. App. 626 (159 S. E. 741); Columbia Building & Loan Asso. v. Roberts, 44 Ga. App. 314 (161 S. E. 291); Whitley v. Shannon, 49 Ga. App. 548 (176 S. E. 517); Fuller v. Rich’s Inc., 57 Ga. App. 424 (195
The bill of exceptions makes no mention or reference to a motion for new trial, but the record contains an order overruling a motion for new trial, which bears the same date as the verdict, judgment, and appeal in this case. No ground of a motion for new trial is mentioned, and under the' record there could have been none except the striking of the defendant’s answer, which was not proper subject-matter for a motion for new trial. But conceding there was a motion for new trial, where the same had been overruled or disposed of by the judge, this would not prevent the plaintiff in error from entering an appeal from the final judgment and assigning error on the antecedent ruling striking his answer, where this was done in due time. Copeland v. Gilbert, 24 Ga. App. 387 (100 S. E. 775); Prudential Insurance Co. v. Hattaway, 49 Ga. App. 211, 214 (174 S. E. 736); Wright v. Hollywood Cemetery Cor., 112 Ga. 884, 893 (38 S. E. 94, 52 L. R. A. 621). See Branon v. Ellbee Pictures Cor., Coppedge Dry Cleaning Co. v. Levine, and Columbia Building & Loan Asso. v. Roberts, supra.
It has been repeatedly ruled both by this court and the Supreme Court that an answer to a suit on notes which only denies the allegations of the petition is no more than a plea to the general issue, and should be stricken on demurrer. Code, § 81-306; Richey v. Johnson, 21 Ga. App. 41 (2) (93 S. E. 514); Gunn v. Head, 116 Ga. 325, 327 (42 S. E. 343). The answer in the present case did not even amount to a general denial, and set up no defense. Besides, it was evasive, and for that reason was not good as an answer. Code, § 81-308. While from the standpoint of practice the judgment of the appellate division of the municipal court dis
Judgment reversed, with direction.