Lowry v. Thompson

¶1dissenting. In my opinion this case is controlled by the numerous and repeated decisions of the Supreme Court and this court which hold that where a case has been tried before a jury and a verdict rendered therein, even where the verdict was directed by the court, if the losing party desires to test the sufficiency of the evidence to support the verdict, a motion for a new trial is indispensable, and ““the sufficiency of the evidence to sustain a verdict will not be considered by this court upon a direct bill of exceptions. The question must be made and passed upon in the court below, by a motion for a new trial." (Italics mine.) Bacon v. Jones, 117 Ga. 497 (2) (43 S. E. 689); Beall v. Mineral Tone Co., 167 Ga. 667 (146 S. E. 473); Sanders v. State, 84 Ga. 217 (10 S. E. 629), and cit.; Mobley v. Ellis, 37 Ga. App. 683 (141 S. E. 321), and cit.; Hamilton Bank v. Robertson, 177 Ga. 734 (171 S. E. 293). The instant case was tried before a jury, and a verdict in favor of the plaintiff was directed, and was so returned by the jury. The defendant, without moving, for a new trial, brought the case to this court by a direct bill of excep*76tions reciting that the judge directed the verdict in favor of the plaintiff, but assigning error on said direction only as follows: “Plaintiff in error assigns error upon the ruling of the court in directing a verdict in favor of the plaintiff, and leaving to the jury only the amount of damages [to be] awarded against the defendant.” Clearly this assignment of error does not “raise the point that the direction of the verdict was erroneous because there were questions of fact that should have been submitted to the jury, and therefore no such question is presented for decision.” Hamilton Bank v. Robertson, supra, and cit.; Mobley v. Ellis, supra, and cit. In my opinion none of the assignments of error in the bill of exceptions raises any question for the consideration of this court. I think the judgment should be affirmed.