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GARDNER v. GARDNER.
46122.
EVANS, Judge.
Appellate procedure. McIntosh Superior Court. Before Judge Caswell.
George Gardner, as plaintiff, sued Lottie Fisher Gardner to recover "One (1) certain 9N Ford Tractor with accessories and equipment belonging thereto, being well known as the John Gardner tractor." The jury found in favor of the plaintiff and judgment was entered thereon on June 22, 1970. Defendant filed her motion for new trial upon the general grounds only. The same came on for a hearing and was denied on January 13, 1970, and filed on January 15, 1971. Thereafter, on the same date, the defendant filed her notice of appeal, stating therein that a motion for new trial was timely filed and overruled on January 15, 1971, but she did not appeal from that judgment but simply appealed from the judgment entered on the verdict dated June 22, 1970. Error is enumerated only on the judgment in favor of the plaintiff that it was "contrary to the evidence," "without evidence to support it," "contrary to law," and "decidedly and strongly against the weight of the evidence." Held:
"Where after trial a motion for new trial is filed and overruled by the trial court such judgment establishes as the law of the case that the questions raised by such motion for new trial are without merit unless such judgment is enumerated as error upon appeal." Hill v. Willis, 224 Ga. 263 (4) (161 SE2d 281). The appellant failed to appeal from the overruling of the motion for new trial, nor did she enumerate as error the overruling of the same. This case is therefore controlled adversely to appellant by the decision in Hill v. Willis, supra, in that the law of the case has been established by the judgment denying the motion for new trial unappealed from. Accordingly, the judgment here appealed from must be
White & Pelham, Wynn Pelham, for appellee.
Lissner & Killian, William R. Killian, for appellant.
SUBMITTED APRIL 7, 1971 -- DECIDED APRIL 30, 1971.
Friday May 22 15:48 EDT


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