
    27846.
    Allison v. Commercial Credit Company.
    Decided March 15, 1940.
    
      Will G. & James L. Moore, for plaintiff in error. '
    
      Woodruff <& Ward, Douglas Dennis, contra.
   Broyles, C. J.

Upon the hearing of the certiorari in this case the judge rendered the following decision: “The certiorari . . coming on regularly for hearing, upon consideration thereof the court is of the opinion that the action of the judge of the municipal court of Atlanta, DeKalb section, in sustaining plaintiff’s motion to strike defendant’s answer and plea of recoupment as amended was correct. It appears, however, from the record in the case that no evidence was offered by the plaintiff, and that there were allegations of fact in the petition which necessarily required proof, and that a verdict could not properly be directed . . in the absence of proof as to some of the allegations in the petition. Bor that reason, the court is of the opinion that it was error to direct a verdict for the plaintiff. . . The certiorari is therefore sustained, and the case is remanded to the trial court for another trial.” In the bill of exceptions the plaintiff in error assigned error only, on that part of the judgment affirming the ruling striking the defendant’s pleas. Held, that under the facts of the ease the ruling of the judge of the superior court affirming the judgment of the trial court in striking the answer and plea of recoupment was not error. The certiorari was properly sustained.

Judgment affirmed.

•MacIntyre and Guerry, JJ., concur.  