
    408.
    MAYOR AND COUNCIL OF DUBLIN v. DUDLEY.
    1. A judgment overruling a demurrer can not properly be made a ground of a motion for a new trial.
    2. The failure of the court to charge a proposition of law which is not applicable to any defense set up in defendant’s plea is not, in the ab: senee of a written request so to charge, reversible error, although there may be some slight evidence tending to support such a theory of the case.
    3. The evidence warranted the verdict.
    
      Action for damages, from city court of Dublin — Judge Burch. February 28, 1907.
    Argued June 21,
    Decided November 11, 1907.
    
      W. C. Davis, for plaintiffs in error. Ira S. Chappell, contra.
   Russell, J.

One of the grounds of the motion for a new trial is that the court erred in overruling a demurrer. It has been uniformly held, for many years, that this is not a proper ground of a motion for a new trial; and, in the language of Chief Justice Lumpkin, as used in the case of Sutton v. McLeod, 29 Ga. 594, we now say, “This principle is hoary with age. We bow to it reverently.”

Nor is it a good ground for a new trial that the judge failed to charge a proposition of law, ev.en though there was some slight evidence to support a charge thereon, where such charge would have given the defendant the benefit of a theory not hinted at in his answer, and where no written request was presented to the trial judge. There being sufficient evidence to warrant the verdict, which is also approved by the trial judge, it should stand.

Judgment affirmed.  