Kirwan Bros. v. Butler

Where a petition is not demurred to, and the plaintiff proves his case as laid and obtains a verdict and judgment, the defendant cannot raise the question of the sufficiency of the petition by a motion for a new trial. Grice v. Grice, 197 Ga. 686(1) (30 S. E. 2d, 183), and cases cited. While we have not been able to find where the above has been held with reference to defensive pleadings, the basis, logic, and reasons for a similar conclusion as to such pleadings are the same. In this case the question of whether the former action should abate the present one was one of law and not of fact,…