Oslin v. Telford , 108 Ga. 803 ( 1899 )

Little, J.

1. When a petition, instituting a suit on a written contract of guaranty, alleges that such contract was made “upon sufficient consideration,” such allegation of consideration is sufficient, if other proper averments are made, to show a cause of action. Proper practice requires an issue as to whether the petition contains sufficient allegations to show on its face aright of recovery to be raised by demurrer.

2. The demurrer to the petition, as it appears in the record, was made and overruled at the previous trial of the case, and a writ of error was sued out to this court, in which no question was made as to the correctness of the ruling on the demurrer. It is, therefore, too late to seek under the present bill of exceptions to review the judgment overruling the demurrer, even if the bill of exceptions contained a proper assignment of error thereon. Hodgkins v. Marshall, 102 Ga. 191.

Submitted June 10, Decided July 26, 1899.

Complaint. Before James M. Towery, judge pro hac vice. City court of Hall county. September 12, 1898.

H. H. Perry, for plaintiff in error. H. H. Bean, contra.

3. If in the trial of a case the plaintiff invokes a ruling the effect of which is to put the burden of proof upon the defendant and the latter is satisfied therewith, without regard to whether such ruling was on its merits correct or not, the plaintiff can not -thereafter complain because the court allowed the defendant to open and conclude.

4. This court having, at the March term, 1896(99 Ga. 507), decided that upon the facts then appearing the defendant was liable, and it appearing that the facts in the present record are substantially the same as those then passed on, it must be held that the verdict in favor of the defendant is contrary to law, and that the court did not err in setting it aside and in-granting anew trial. Judgment affirmed.

All the Justices concurring.