
    32271.
    Moore v. The State.
    Decided January 18, 1949.
    
      Kimzey &'Kimzey, for plaintiff in error.
    
      J. Herbert Griggs, Solicitor pro tem., Irwin B. Kimzey, Solicitor, Kimzey, Griggs & Crawford, contra.
   Gardner, J.

1. The accused was convicted of the abandonment of his three minor children, ages six, eight, and ten, the two oldest girls, and the youngest a boy. The judge of the city court, by agreement, passed upon the law and facts without a jury. After evidence was introduced by both parties, the accused was found guilty of abandonment under the Code, §-74-9902.

No motion for a new trial was made. It is sought to have the case reviewed by this court by a direct bill of exceptions which alleges: “(a) Said judgment and finding are contrary to law and to the principles of justice and equity, (b) Said judgment and finding are contrary to the evidence, (c) Said judgment and finding are without evidence to support same, (d) Said judgment and finding are decidedly and strongly against the weight of the evidence, (e) Because the evidence demanded a finding and judgment of not guilty in favor of the defendant.”

The State filed a motion to dismiss the bill of exceptions on the ground that no motion for a new trial was made in the court below and for this reason this court is without jurisdiction to consider the assignments of error. Whether the verdict was warranted by the evidence can not be decided by this court unless a motion for a new trial was made in the court below. Sanders v. State, 84 Ga. 217 (10 S. E. 629); Parker v. Family Finance Co., 49 Ga. App. 204 (174 S. E. 719); Holland v. State, 18 Ga. App. 102 (88 S. E. 908). See also Massengill v. First National Bank of Chattanooga, 76 Ga. 341 (5); Holsey v. Porter, 105 Ga. 837 (31 S. E. 784); Mackin v. Blalock, 133 Ga. 550 (66 S. E. 265, 134 Am. St. R. 220); Schroeder v. Schroeder, 144 Ga. 119 (86 S. E. 224); Beall v. Mineral Tone Co., 167 Ga. 667 (146 S. E. 473); Sheftall v. Johnson, 171 Ga. 890 (157 S. E. 94); Durden v. Harper, 174 Ga. 570 (163 S. E. 192); Hamilton National Bank v. Robertson, 177 Ga. 734 (171 S. E. 293); Jones Bros. v. Richards, 23 Ga. App. 560 (99 S. E. 11); General Tire & Rubber Co. v. Brown Tire Co., 46 Ga. App. 548, 550 (168 S. E. 75); Woodall v. McCurry, 54 Ga. App. 437 (188 S. E. 270). There are many other decisions to the same effect.

2. Even if we were authorized to pass upon the facts as contained in the whole record, such evidence as is set out in the bill of exceptions, regardless of the brief of evidence which must be attached to a motion for a new trial and which would allow the trial judge to pass upon the same on the hearing of such motion for a new trial, the evidence thus set out in the bill of exceptions and under the law of abandonment, overwhelmingly supports the verdict. The motion to dismiss is sustained and the bill of exceptions dismissed.

Bill oj exceptions dismissed.

MacIntyre, P. J., and Townsend, J., concur.  