Opinion
36405.
DECIDED NOVEMBER 28, 1956.
Action on open account. Before Judge Mitchell. DeKalb Civil Court. July 27, 1956.
Charlie Franco, for plaintiff in error.
M. H. Blackshear, Jr., Haas, Holland Blackshear, contra.
1. Where counsel for the plaintiff in error is ordered to file additional briefs under Code § 6-1604 in support of all the assignments of error in a writ of error, only such grounds as are argued in such supplemental brief will be considered by this court, and all other assignments of error will be treated as abandoned.
2. A ground of a motion for new trial must be complete within itself.
DECIDED NOVEMBER 28, 1956.
Hyman Morris, doing business as Morris Insurance Agency, brought an action against Joseph I. Hazan in which he sought to recover an amount alleged to be due on an open account. The defendant filed a special demurrer which attacked the bill of particulars attached to the petition. The trial court overruled this special demurrer. The defendant also filed an answer and cross-action in which he sought a judgment against the plaintiff in excess of the amount sued for in the plaintiff's petition. On the trial of the case the jury returned a verdict for the plaintiff in the full amount sued for. The defendant filed a motion for new trial on the usual general grounds which he later amended so as to add three special grounds. The motion for new trial as amended was denied by the trial court and it is to this judgment adverse to him, and to the overruling of his special demurrer, that the defendant excepted in his writ of error.
1. The defendant in a supplemental brief filed on November 1, 1956, in compliance with an order of this court issued under Code § 6-1604, which required him to file additional argument in support of all his assignments of error, only argued the third special ground of his amended motion for new trial. Therefore, the exceptions to the overruling of his special demurrer and to the denial of his motion for new trial on the general grounds and the first two special grounds are treated as abandoned.
2. In the third special ground the defendant contends that the trial court erred in failing to charge the jury his contention that if the jury found for the plaintiff the defendant would "be entitled to reduce the amount sued for by the plaintiff in that amount the jury felt was owed, if any, by the plaintiff to the defendant." No evidence is set forth in this special ground to support the contention of the defendant that the trial court erred in failing to charge on this contention.
"A ground of a motion for a new trial must be complete within itself. Accordingly, ground 3 of the amendment, while complaining that the court failed to submit a specific contention of the defendant, was incomplete, and insufficient to show error, in that it was not made to appear therein whether such contention was supported by any evidence. Birmingham Atlantic Air-Line Railroad c. Co. v. Walker, 101 Ga. 183 (3) ( 28 S.E. 534); Prescott v. Fletcher, 133 Ga. 404 (2) ( 65 S.E. 877); Flake v. Bowman, 28 Ga. App. 443 (3) ( 111 S.E. 747)." Hicks v. Cherry, 193 Ga. 4 (3) ( 17 S.E.2d 60).
Therefore this one remaining ground of the amended motion for new trial is incomplete and presents no question for decision by this court, and the trial court did not err in denying the defendant's motion for new trial as amended.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.