
    42877.
    HAWES, Commissioner v. RED OAK HAULING COMPANY.
    Argued June 8, 1967
    Decided September 12, 1967.
    
      Arthur K. Bolton, Attorney General, William L. Harper, Assistant Attorney General, Melvin E. Thompson, Jr., Deputy Assistant Attorney General, for appellant.
    
      William Edward Spence, for appellee.
   Quillian, Judge.

1. A tax fi. fa. was issued by the Commissioner of Revenue, under which a levy was made. The defendant filed an affidavit of illegality and the case came on for a hearing before the judge of the superior court. Prior, .to the time the plaintiff in fi. fa. closed his case, the judge entered an order Sustaining the affidavit of illegality and dismissed the levy. The judgment which was tantamount to the direction of a verdict in a jury trial, being entered prior to the close of the evidence, was error. Code § 110-104, as amended (Ga. L. 1961, p. 216); Wilson v. Kornegay, 108 Ga. App. 318, 321 (132 SE2d 791); Mallard v. Mallard, 221 Ga. 480 (145 SE2d 533).

2. The trial judge was correct in refusing to allow a witness for the plaintiff in fi. fa. to testify as to his examination of certain documents which were in the defendant’s possession since the documents themselves would have been the highest and best evidence. Code §§ 38-203 and 38-701. While the objection to the proffered evidence was that it was hearsay, the rule is well settled that although an objection was predicated on different grounds if the testimony was properly rejected, the ruling of the trial court will be sustained. Lamon v. Perry, 33 Ga. App. 248, 251 (125 SE 907) and cases cited. Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 824 (4) (187 SE 194); Cox v. State, 93 Ga. App. 533, 535 (92 SE2d 260).

Judgment reversed.

Jordan, P. J., and Deen, J., concur.  