
    20946.
    Guaranty Life Insurance Company of Savannah v. Bell.
    Decided December 19, 1930.
    
      Walter DeFore, James G. Estes, V. J. Adams, for plaintiff in error.
    
      Miller & Lowrey, contra.
   Broyles, C. J.

1. Conceding (but not deciding) that the judgment, directing a verdict sustaining the defendant’s plea of tender and limiting the plaintiff’s recovery to the amounts tendered, was not a final one, the ■petition for certiorari did contain an assignment of error upon a final judgment, to wit, the overruling of the plaintiff’s motion for a new trial, and there is no merit in the contention of the plaintiff in error that the certiorari should have been dismissed on the hearing.

2. On the trial of the ease in the municipal court of the city of Macon, the controlling issue was the age of the insured at the time the two policies sued upon were issued, and on that issue the evidence was conflicting, and the court erred in directing a verdict sustaining the plea of tender filed by the defendant, and limiting the plaintiff’s recovery to the amounts tendered. It follows that it was proper for the judge of the superior court to sustain the certiorari and grant a new trial.

3. It does not appear from the record whether there were any written applications for the policies of insurance, and this court, therefore, can not determine whether the provisions of section 2471 of the Civil Code of 1910 are applicable to the facts of this case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.  