
    Carter & Ford v. Johnson et al.
    
    Submitted December 10,
    Decided December 20, 1900.
    Affidavit of illegality. Before Judge Williams. City court of Waycross. March term, 1900.
    
      R. A. Hendricks, for plaintiffs.
    
      Toomer & Reynolds, for defendants.
   Lumpkin, P. J.

1. Since sustaining a demurrer to an affidavit of illegality would leave nothing to be tried, it is manifest that the overruling of such a demurrer can not properly be made a ground of a motion for a new trial. See, in this connection, Willbanks v. Untriner, 98 Ga. 861; Holleman v. Bradley Co., 106 Ga. 157; Cleveland v. State, 109 Ga. 265.

2. A direct assignment of error upon a ruling made during the progress of a trial comes too late if for the first time presented in a bill of exceptions sued out more than thirty days after the adjournment of the term at which such ruling was made. Civil Code, § 5539; Dietz v. Fahy, 107 Ga. 325, and cases cited.

3. The evidence warranted a finding in favor of the prevailing party, and there was no abuse of discretion in denying a new trial.

Judgment affirmed.

All the Justices concurring.  