Sparks Improvement Co. v. Jones, 4 Ga. App. 61

Sparks Improvement Co. v. Jones

4 Ga. App. 61 | Ga. Ct. App. | 1908

Powell, J.

That the plaintiff recommences an action previously dismissed without the payment of the costs of the first suit is not a matter affecting the merits of the controversy; it is matter of abatement only. To raise any issue upon this question, the defendant must file a timely formal plea in abatement. Such pleas must be filed under oath at the first term. Stirk v. Central Ry. Co., 79 Ga. 495 (5 S. E. 105); Sweeney v. Malloy, 107 Ga. 80 (32 S. E. 858); Wright v. Jett, 120 Ga. 995 (48 S. E. 345); Board of Education v. Kelley, 126 Ga. 479 (55 S. E. 238). The case having resulted favorably to the plaintiff, grounds of error assigned by the defendant upon the manner in which the question as to whether the costs of the first suit were in fact paid are wholly immaterial, there having been no plea in abatement filed.

2. Material amendments to the pleadings, made pending trial, may entitle the defendant to a continuance upon the ground of surprise. In such cases the party should formally move the court for a continuance,- and declare that he is surprised and less ready to proceed with the trial; whereupon the court, looking to the nature of the amendment and to all the history of the case, should exercise a sound discretion in refusing or granting a postponement *62or continuance. Such a discretion is reviewable; and in this case no abuse appears.

3. Suit on account may be maintained for goods furnished or work done, though the original agreement whereon the goods were furnished or the work was done may be evidenced by a written contract. Chapman v. Conwell, 1 Ga. App. 212 (58 S. E. 137). Parol evidence is admissible to show that the terms of a written contract have been changed by mutual consent of the parties since its execution, except so far as the statute of frauds may prevent such changes; and in this case the contract having been fully performed, any exception made by the statute of -frauds is not applicable. Rogers v. Atkinson, 1 Ga. 12; Jones v. Grantham, 80 Ga. 472 (5 S. E. 764) ; Augusta Southern Ry. Co. v. Smith, 106 Ga. 864 (33 S. E. 28), and cit.

4. Usually, grounds of a motion for new trial must be complete within themselves, and must not require reference to other portions of the record to complete them or to show the error complained of. While the trial court or the reviewing court may look to other portions of the record, and therefrom hold that an error duly assigned in a ground of a motion is not, in the light of all the facts, cause for new trial, this in no wise relaxes the requirement that the movant must present his grounds completely within themselves. This rule has been applied by the Supreme Court and by this court so often that no citation of authority is necessary. Many of the grounds of the motion for new .trial now under review are defective in this respect. Upon a careful consideration of the whole case we find-that a just verdict has been rendered, fully supported by evidence, and that no reversible error is shown; therefore the judgment is Affirmed.