
    21215.
    FROUG v. UPCHURCH PACKING COMPANY INC.
    Decided April 14, 1931.
    Rehearing denied May 12, 1931.
    
      Morris Machs, for plaintiff in error.
    
      Knight & Patterson, contra.
   Luke, J.

Upchurch Packing Company Inc. brought an action in the municipal court of Atlanta against M. Froug and Pearl Froug, for the recovery of $120 alleged to be due and owing upon an open account. Judgment was rendered in favor of the plaintiff against M. Froug, and a motion for a new trial was overruled. This judgment was affirmed upon appeal to the appellate division of the municipal court. The case was carried to the superior court by writ of certiorari, which upon the hearing was overruled. To this order exception was taken; and the case is here for review. The plaintiff in error complains that the trial court erred in refusing a motion for a continuance upon the ground of the absence of a material witness, but fails to show in connection with his application that there was compliance with the requirements of the Civil Code (1910), § 5715. Hence the trial judge committed no error in overruling the motion.

Nor was there error in ovérruling the demurrer to the complaint, or in refusing to grant a nonsuit for any of the reasons assigned in either connection, or in refusing to grant a new trial. Therefore the overruling of the certiorari will not be disturbed.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., concur.

ON MOTION EOR REHEARING.

Luke, J.

1. The plaintiff’s suit was brought against an alleged partnership composed of M. Froug and Pearl Froug. Each defendant filed a plea of no partnership, and the evidence sustained the pleas. There was no amendment to the petition. The trial judge, sitting without the intervention of a jury, dismissed the case as to Pearl Froug and entered a judgment for the amount sued for against M. Froug as an individual. There was some evidence authorizing the finding that M. Froug as an individual owed the debt sued for; and therefore the judgment was not contrary to law. Comolli v. National Cash Register Co., 169 Ga. 409 (150 S. E. 551), s. c. 40 Ga. App. 683 (151 S. E. 517).

3. The other grounds of the motion for a rehearing are without merit.

Motion denied.

Broyles, G. J., and Bloodworth, J., concur.  