Brandon & Co. v. Akers

Holden, J.

1. Under the ruling in McElveen Commission Co. v. Jackson, 94 Ca. 549 (4), “It is not cause for a new trial that the court refused to dismiss the action on motion of defendant, the ground, of the motion being that the suit was against a partnership composed of two persons, only one of whom had been served, and there was no return of service or of non est inventus as to the other. This is true whether the cases of Printup v. Turner, 65 Ga. 71 , and Ells v. Bone, 71 Ga. 466 , were correctly ruled or not.”

2. Suit was brought against a partnership alleged to have been composed of two named persons of the county in which suit was brought. Service appears to have been made on only one of them, and there was no return of service or of non est inventus as to the other, who did not appear and plead. A plea in abatement was duly filed at the first term by the defendant who was served, averring that the other defendant had not been served and was within the jurisdiction of the court and could be reached and served. Reid: (a) The decision of the court in “overruling” such plea of the defendant can not be made the ground of a motion for a new trial. Hawkins v. Studdard, 132 Ga. 265 ( 63 S. E. *79 852 ). (b) Where it appears from statements in the motion for a new trial, certified to be true by the presiding judge, that the court made the ruling above referred to, it is not a good ground of a motion for new trial that the court, after such ruling, omitted to charge in regard to the matters embraced in such plea. If any error was committed upon the trial (in which other issues made by the pleadings and evidence were submitted to the jury), it was in the decision “overruling” the plea, and not in omitting to charge the jury, after the decision “overruling” the plea, in regard to the matters embraced in such plea. Ellis v. Almand, 115 Ga. 333 (2), ( 41 S. E. 642 ).

February 21, 1910. Complaint. Before Judge Boan. Boekdale superior court. July 29, 1908. A. O. & J. II. McOdlla, for plaintiffs in error. John B. Irwin, contra.

3. A direct assignment of error upon a ruling made during the progress of a trial comes too late if for the first time presented in a bill of exceptions sued out more than thirty days after the adjournment of the term at which such ruling was made. Heery v. Burkhalter, 113 Ga. 1043 ( 39 S. E. 406 ).

4. The verdict was supported by the evidence, and the discretion of the court was not abused in refusing a new trial.

Judgment affirmed.

All the Justices concur.