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ADAMS v. PERRY et al.; and vice versa.
19778.
19779.
Cancellation, etc. Before Judge Stephens. Laurens Superior Court. April 18, 1957.
DUCKWORTH, Chief Justice.
1. A judgment denying a plaintiff's motion to dismiss the petition can not be reviewed as a ground of a motion for new trial. It must be excepted to directly.
2. The relief sought was cancellation of a deed because of alleged fraud in its procurement; and the evidence showing that the plaintiff grantor could have read it but did not, a verdict against her was demanded.
This suit in equity, by a grandmother of two children of her deceased daughter, to cancel a warranty deed executed by her on August 29, 1953, conveying a tract of land to her grandchildren unconditionally, alleges as grounds for cancellation that the father, her son-in-law, in virtue of this confidential relationship to her, falsely represented to her that under the deed she retained a life estate, and she was thus fraudulently induced to sign the deed. It is further sought to enjoin the son-in-law and father of the minor grantees from interfering with the occupancy of said land by another son-in-law of petitioner, to whom she is alleged to have rented the premises. The judgment overruling the special and general demurrers is excepted to in a cross-bill. The main bill excepts to a judgment denying the plaintiff's motion for new trial after a verdict and judgment in favor of the defendants.
1. "A motion for new trial reaches the errors in the finding of the jury, or such errors of the court as may lead to the finding, but is not the proper method of correcting errors in a decree or judgment." Potts v. City of Atlanta, 140 Ga. 431, 433 (79 S. E. 110). The above statement is unambiguous and points unmistakably to the limitations upon motions for new trial for correcting errors in the finding of the jury, or such errors of the court as may lead to that finding. It may not be used to correct errors in a decree or judgment. The judgment denying the plaintiff's motion to dismiss her petition is unrelated to the verdict of the jury but is a judgment of the court, and error can be properly assigned thereon only by direct exceptions. The ground of the motion for new trial complaining of that judgment is an improper assignment and presents nothing for decision. For other cases bearing on this question and consistent with the ruling we make, see Turner v. Willingham, 148 Ga. 274 (96 S. E. 565); Hawkins v. Studdard, 132 Ga. 265 (63 S. E. 852, 131 Am. St. R. 190); Zachry v. Industrial Loan &c. Co., 182 Ga. 738 (186 S. E. 832); Page v. Brawn, 192 Ga. 398, 400 (15 S. E. 2d 506); Dickson v. Citizens Bank &c. Co., 184 Ga. 398 (191 S. E. 379); Cantrell v. Kaylor, 203 Ga. 157 (45 S. E. 2d 646).
The evidence against the tenant for rent is not excepted to by him. It follows that the verdict was demanded, and the court did not err in directing the same. The amended motion "for new trial is wholly without merit, and the court did not err in denying the same.
Larsen & Larsen, for plaintiff in error.
SUBMITTED JULY 22, 1957 -- DECIDED SEPTEMBER 6, 1957.
Saturday May 23 01:35 EDT


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