Opinion
40788.
DECIDED JULY 14, 1964. REHEARING DENIED JULY 27, 1964.
Complaint. Walker Superior Court. Before Judge Farris.
Wade H. Leonard, for plaintiff in error.
Shaw, Stolz Fletcher, George P. Shaw, contra.
Plaintiffs in error except to the judgment of the trial court dismissing their motion for new trial and to the subsequent ruling dismissing their motion to reinstate their motion for new trial.
The motion for new trial was on the general grounds only but no brief of evidence accompanied the motion. Held:
It is always essential in passing upon what are commonly called the "general grounds" of a motion for new trial that the court consider the evidence. Thus, a motion for new trial must be dismissed where it is based on the general grounds only and is unsupported by a brief of evidence. Hart v. Brooks, 103 Ga. App. 470 (1) ( 119 S.E.2d 602); Murry v. Snyder, 91 Ga. App. 456 (2b) ( 85 S.E.2d 823); McKoy v. Hardy, 92 Ga. App. 525, 527 ( 88 S.E.2d 708); Daniel v. Atlanta Newspapers, Inc., 89 Ga. App. 895, 899 (2) ( 81 S.E.2d 547); Oliver v. Benson, 211 Ga. 268 (2, 3) ( 85 S.E.2d 418); Ga. Procedure and Practice, § 22-7.
The above rule is applicable even if the petition initiating the trial clearly shows on its face that it was subject to general demurrer. The rule is also relevant even if it is apparent that the verdict was not authorized by the pleadings. Under the rule enunciated in Harvey v. DeWeill, 102 Ga. App. 394 (2b), 404-407 ( 116 S.E.2d 747), it is quite possible that all of the deficiencies in the petition may have been supplied during the trial by the admission of evidence which, while not authorized by the pleadings, was admitted without objection.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.