180 Ga. 215 | Ga. | 1935
“The brief of evidence required on motions for new trial shall be a condensed and succinct brief of the material portions of the oral testimony, including a similar brief of interrogatories read on the trial. In such brief there shall be
The fourth ground of the motion for new trial complains of the form of the question submitted to the jury: “Did the Oconee Manufacturing Company and the Citizens & Southern National Bank, as trustee, by mutual agreement express or implied, depart from the terms of the original mortgage and bonds, and pay or receive money under such departure?” The criticism is that the question as propounded made the answer depend “upon whether or not there had been an agreement between the parties to depart from the terms of the contract, whereas the legal issue, and the true issue for the jury to pass on was whether or not there had been a departure in fact in paying and receiving money.” The same criticism is made, in other grounds, of the charge to the jury substantially in the language of the question propounded. The burden of showing harmful error being upon the movant, these grounds necessarily involve a consideration of the evidence, in order that the trial judge and reviewing court may determine whether a new trial should be granted. All the special grounds of the motion for new trial are set forth at length in the statement of facts, and it is apparent that each of them depends upon a consideration of the evidence.
The exception to -the decree in favor of the plaintiffs, foreclos
Judgment affirmed.