Georgia Railroad & Banking Company v. Frazer , 118 Ga. App. 810 ( 1968 )

118 Ga. App. 810 (1968) 165 S.E.2d 607

GEORGIA RAILROAD & BANKING COMPANY
v.
FRAZER.

43711.

Court of Appeals of Georgia.

Argued June 3, 1968. Decided November 26, 1968. Rehearing Denied December 9, 1968.

Robert E. Knox, Fulcher, Fulcher, Hagler, Harper & Reed, W. M. Fulcher, for appellant.

Randall Evans, Jr., for appellee.

WHITMAN, Judge.

1. The appeal in this case is from the judgment on the verdict. However, all the matters enumerated as error, with three exceptions, were included in a motion for new trial, as amended. Said motion was passed on adversely to the appellant by the trial court.

Under the holding in Hill v. Willis, 224 Ga. 263 (161 SE2d 281), the denial of a motion for new trial, as amended, unappealed from, becomes the law of the case as to matters passed on therein unless the denial of the motion is enumerated as error. See also Bryan v. State, 224 Ga. 389, 391 (1) (162 SE2d 349); Tiller v. State, 224 Ga. 645 (164 SE2d 137).

2. Appellant's amendment to its enumeration of errors, adding as an enumeration of error the trial court's ruling on its motion for new trial, being filed after the time allowed for the filing of the enumeration of errors, will not be considered. Foskey v. Kirkland, 221 Ga. 773 (1) (147 SE2d 310); Arkwright v. State, 223 Ga. 768, 769 (158 SE2d 370).

3. Of the three enumerations not included in the law of the case rule, one relates to the overruling of a special demurrer. The Civil Practice Act abolished demurrers (Code Ann. § 81A-107 (c) (Ga. L. 1966, pp. 609, 618; Ga. L. 1967, pp. 226, 230), and this court must apply the procedural law as it exists at the time of review. Hill v. Willis, 224 Ga. 263, 264 (1), supra. Therefore, this enumeration is without merit.

4. The two remaining enumerations are that the trial court erred in overruling appellant's motions for a directed verdict and judgment notwithstanding the verdict. These enumerations present the question of whether there was any evidence of probative value to support the verdict of the jury. The question was passed on adversely to appellant when the trial court denied the motion for new trial, as amended, which contained the usual general grounds. As noted above, the trial court's determination that there was evidence to support the verdict is not appealed from nor enumerated as error.

Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.