Burnet v. Bazemore
| Citation | 176 S.E.2d 184,122 Ga.App. 73 |
| Decision Date | 10 April 1970 |
| Docket Number | No. 44916,No. 1,44916,1 |
| Parties | H. H. BURNET, Sr., et al. v. David A. BAZEMORE, by Next Friend, et al |
| Court | United States Court of Appeals (Georgia) |
Bennett, Pedrick & Bennett, Larry E. Pedrick, John W. Bennett, Waycross, for appellants.
Friedman, Haslam & Wainer, Erwin A. Friedman, Nelson Haslam, Savannah, for appellees.
Syllaubs Opinion by the Court
After the rendition of a verdict and judgment adverse to them, the appellants made a motion for judgment notwithstanding the verdict and simultaneously therewith, in the alternative, a motion for new trial on the general grounds. Appeal was taken from the judgment on the verdict and from the trial judge's overruling the appellant's motion for judgment notwithstanding the verdict. No mention was made in the notice of appeal with regard to the overruling of the motion for new trial and such judgment was not enumerated as erro. Held:
Absent a specific appeal from the ruling on the motion for new trial or enumerating the same as error, the denial of the motion becomes the law of the case as to all grounds contained therein. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281, and Tiller v. State, 224 Ga. 645, 164 S.E.2d 137. The appellants enumerate as error the denial of their motion for directed verdict and the overruling of their motion for judgment notwithstanding the verdict. This raises the question of whether there was any evidence to support the verdict. Since the denial of the motion for a new trial unappealed from is the law of the case that the evidence was sufficient, the enumeration of error is without merit. Ga. Railroad & Banking Co. v. Frazer, 118 Ga.App. 810, 165 S.E.2d 607.
Judgment affirmed.
Counsel for movant contends that the failure to enumerate as error the ruling on the motion for new trial did not fix the law of the case with regard to the motion for judgment n.o.v. He argues this position is sound because the motion for new trial complained, (1) that the verdict is decidedly and strongly against the weight of evidence, (2) that the verdict is contrary to the principles of justice and equity; while the motion n.o.v. was on the grounds that the verdict is contrary to evidence and without evidence to support it. Thus, it is reasoned that the grounds for new trial did not raise the question of whether there was any evidence to support it.
The cases cited by the movant indicate the often reiterated rule concerning the limited area of consideration our appellate courts have been reviewing the evidence compared to the wider scope of the trial judge in considering whether to grant a new trial. Crosby Aeromarine Inc. v. Hyde, 115 Ga.App. 836, 838, 156 S.E.2d 106, is authority for the proposition that any of the general grounds are addressed to the discretion of the trial judge. See West Lumber Co. v. Castleberry, 76 Ga.App. 9, 45 S.E.2d 67; Martin v. State, 95 Ga.App. 519, 98 S.E.2d 105, and cases annotated under Code §§ 70-202, 70-206. Moreover, on appeal the general grounds pose the sole question was there any evidence to support the verdict. Durham v. Pitts, 101 Ga.App. 437, 439, 114 S.E.2d 217; Adler v. Adler, 207 Ga. 394, 405, 61 S.E.2d 824. Only if there was no evidence may this court reverse the trial court. McBowman v. Merry, 104 Ga.App. 454, 456, 122 S.E.2d 136, and Smith v. Merck, 206 Ga. 361, 375, 57 S.E.2d 326. This same rule (any evidence) applies to both the trial court and this court on a motion for judgment notwithstanding the verdict. Ga. R.R. & Banking Co. v. Frazer, 118 Ga.App. 810, 165 S.E.2d 607.
Of course, the grounds of a motion for new trial and those of a motion for judgment n.o.v. are not always the same. Shetzen v. C. G. Aycock Realty Co., 93 Ga.App. 477, 480, 92 S.E.2d 114. The consideration of a motion for judgment n.o.v. does not inculcate the discretionary power of the trial judge to grant a new trial when the verdict is against the weight of evidence. Crosby Aeromarine, Inc. v. Hyde, 115 Ga.App. 836, 838, 156 S.E.2d 106, supra. For this reason, a motion for judgment n.o.v. may be denied without precluding the grant of a new trial; for though there may be some evidence the verdict may still be against the...
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