Opinion
32783.
DECIDED JANUARY 13, 1950. REHEARING DENIED FEBRUARY 9, 1950.
Complaint on notes; from Fulton Civil Court — Judge Wilson Parker. September 19, 1949.
Poole, Pearce Hall, for plaintiff in error.
Nall Sterne, Walter G. Cooper, contra.
Under the Code (Ann. Supp.) § 70-301.1 (Ga. L. 1947, p. 298), a brief of the evidence shall not be required to be filed with any motion for a new trial where the assignments of error made in the motion for a new trial, or the amended motion for a new trial, do not require the consideration by the court of the evidence in said case. However, where, as here, the bill of exceptions assigns error on the overruling of special demurrers to an amendment to the answer, and where a motion for a new trial is based on the general grounds only, and contains no brief of evidence in connection therewith, this court must consider whether the error in overruling the special demurrers on the part of the trial court was harmful to the plaintiff in error. Where, independently of the allegations contained in the pleadings attacked, the evidence would have demanded a finding in favor of the defendant, the erroneous ruling of the trial court would not be grounds for the reversal of the case. See Duke v. Brown, 113 Ga. 310, (11) ( 38 S.E. 764); Scott v. Holden, 69 Ga. App. 615 ( 26 S.E.2d 456); Smith v. Etna Ins. Co., 58 Ga. App. 711 ( 199 S.E. 557). The burden of showing not only error but harm resulting therefrom in upon the movant. First National Bank v. American Sugar Rfg. Co., 120 Ga. 717 ( 48 S.E. 326); Herrington v. Moore, 45 Ga. App. 636 ( 165 S.E. 867). If the appellant could not have recovered in any case, a reversal will not be granted because of an erroneous ruling. Ricks v. Redwine, 73 Ga. 273 (2-a). It is therefore essential to a review of the questions raised in the instant case to determine whether or not the errors complained of would authorize a reversal, and to decide this point the court must first determine whether or not the verdict would in any event have been demanded by the evidence. An approved brief of the evidence must be looked to for the purpose of deciding if the verdict was so demanded. See Huguley v. Huguley, 204 Ga. 692, 697 ( 51 S.E.2d 445). It follows that since a brief of the evidence is necessary to determine this question in the instant case, the bill of exceptions, which fails to specify the same, is fatally defective and must be dismissed on motion.
Writ of error dismissed. MacIntyre, P. J., and Gardner, J., concur.
DECIDED JANUARY 13, 1950. REHEARING DENIED FEBRUARY 9, 1950.
James T. Whitner brought suit against Mrs. Lillian Ashley Whitner as executrix of the estate of Charles F. Whitner Jr. on two notes executed in his favor by the deceased. At the conclusion of the evidence and before verdict the defendant offered an amendment which was allowed by the trial court over objections raised thereto by special demurrer. Exceptions pendente lite were preserved to this ruling. The jury returned a verdict which was made the judgment of the court finding for the plaintiff on the notes in question and for the defendant on her plea of plene administravit praeter. Thereafter, and within the time allowed by law, the plaintiff filed his motion for a new trial on the general grounds only and this motion was dismissed on objection for lack of a brief of evidence. The plaintiff then sued out his bill of exceptions, assigning error on the exceptions pendente lite based on the judgment of the trial court overruling the special demurrers to the amendment, and on the order dismissing the motion for a new trial. The defendant filed a motion to dismiss the bill of exceptions for the reason that the same did not contain a brief of the evidence.