Opinion
40812.
DECIDED SEPTEMBER 9, 1964.
Appellate procedure. Fulton Civil Court. Before Judge Webb.
Alston, Miller Gaines, Martin H. Peabody, Ronald L. Reid, for plaintiff in error.
Hansell, Post, Brandon Dorsey, Charles E. Watkins, Jr., contra.
A special demurrer to a paragraph of the petition relating to the measure of damages was overruled. After verdict and judgment for the plaintiff, the defendant brought the case to this court by bill of exceptions assigning error on the overruling of the special demurrer as controlling the verdict and judgment. There is no brief of the evidence in the record. A motion was made to dismiss the writ of error.
Under the ruling of the Supreme Court in Whitner v. Whitner, 207 Ga. 97 ( 60 S.E.2d 464), the brief of the evidence is necessary for a consideration of a writ of error assigning error on an order overruling a special demurrer, and under such circumstances the judgment of the trial court should be affirmed and the writ of error should not be dismissed on motion. See in this connection, Morrow v. American Tire Co., 106 Ga. App. 788 (3) ( 128 S.E.2d 342).
The motion to dismiss the writ of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.