
    DeKalb Supply Company v. Moore.
    Trial, 38 Cyc. p. 1555, n. 8; p. 1556, n. 9.
    No. 5127.
    September 23, 1926.
    Certiorari; from Court of Appeals. 34 Ga. App. 375.
    
      Joseph E. Berman, Ralph G. Sims, and James R. Parham, for plaintiff in error.
    
      Alston, Alston, Fosler & Moise, and William H. Sibley, contra.
   Per Curiam.

The plaintiff having failed to prove the case as laid in her petition, the trial comrt did not err in granting a nonsuit and the Court of Appeals erred in reversing that judgment.

Judgment reversed.

All the Justices concur, except Beck, P. J., and Gilbert, J., dissenting.

Beck, P. J.

The only question in this case is one of fact depending upon the evidence; and under rulings of this court previously made, the certiorari should be dismissed as having been improvidently granted. But since the majority of the court have decided to retain the case for decision, I dissent from the ruling finally made, being of the opinion that the jury under the evidence was authorized to find that the case as made in the declaration had been proved. Whether a cause of action was stated in the declaration we do not decide, inasmuch as a general demurrer thereto had been overruled by the court below, and to this judgment no exception was taken by the defendant.

Gilbert, J.

I dissent from the judgment rendered by the majority. The writ of certiorari should be dismissed as improvidently granted, for the reasons stated in the dissent from the case of Bryant v. Georgia Ry. & Power Co., 162 Ga. 511 (134 S. E. 323).  