Gettier-Montanye Inc. v. Davidson Granite Co.

(After stating the foregoing facts.)

A defendant cannot raise for the first time in his brief before this court the question whether the plaintiff pursued the wrong remedy. If the plaintiff’s case is subject to this criticism, the defect, if any, appears on the face of the petition. Generally, in the absence of a demurrer or motion to strike, parties to litigation have the right to prove their pleadings as laid. Clark v. Bandy, 196 Ga. 546 (supra).

In its reply brief the defendant insists that this is not a new question and that the same was insisted upon at the trial. The record fails to…