5563 | Ga. Ct. App. | Nov 4, 1914
1. Since the third paragraph of the defendant’s answer attempted to set off an alleged right of action ex delicto against the plaintiff’s action, which was a proceeding ex contractu, it was properly-stricken upon demurrer.
2. Rulings upon a demurrer are not proper subject-matter for a ground of a motion for a new trial. Mayor &c. of Dublin v. Dudley, 2 Ga. App. 762 (59 S.E. 84" date_filed="1907-11-11" court="Ga. Ct. App." case_name="Mayor of Dublin v. Dudley">59 S. E. 84), and cases cited.
3. “What purports to be a brief of evidence in this case, being extensively interspersed with statements and arguments of counsel, and colloquies between counsel and the court, and also with statements by . . the court, none of which in anywise throws any light upon the testimony in the case, does not constitute such a brief of evidence as is required by law.” The merits of the assignments of error upon the court’s rulings on evidence, and upon the direction of the verdict, as well as the usual general grounds of the motion for a new trial, are in this case necessarily dependent upon the brief of evidence, and the judgment of the court below must therefore be affirmed, as this court will not consider such an alleged brief of evidence, and can not, without so doing, determine whether or not the court erred in the rulings complained of or in the direction of the verdict. Price v. High, 108 Ga. 145 (33 S.E. 956" date_filed="1899-07-20" court="Ga." case_name="Price v. High & Co.">33 S. E. 956) ; Albany & Northern Ry. Co. v. Wheeler, 6 Ga. App. 270 (64 S.E. 1114" date_filed="1909-06-15" court="Ga. Ct. App." case_name="Albany & Northern Railway Co. v. Wheeler">64 S. E. 1114). Judgment affirmed.