Dunn v. Gilbert, 21323
| Decision Date | 09 October 1961 |
| Docket Number | No. 21323,21323 |
| Citation | 217 Ga. 358,122 S.E.2d 93 |
| Parties | Robert C. DUNN v. j. Carl GILBERT. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The first grant of a new trial was not error where such grant was based upon the general grounds, and it was not shown that the law and facts required the verdict rendered notwithstanding the judgment of the trial court.
Wotton, Long & Jones, Grigsby H. Wotton, Atlanta, for plaintiff in error.
Preston L. Hollant, Hapeville, for defendant in error.
The exception under review is to an order granting a motion for a new trial on the general grounds only.
This was a suit by J. Carl Gilbert, in which he sought to enjoin Robert C. Dunn from undertaking foreclosure under a deed to secure debt given by Mr. & Mrs. Joseph L. Sanders to Georgia Savings Bank & Trust Company and transferred to Dunn, covering property known as 407 S. Harris Street, East Point, Fulton County. Gilbert alleged that he held a security deed to the same property from the Sanders, but that it was second in point of time to the deed held by Dunn. He alleged that the Sanders' debt to Dunn had been paid, that the security deed held by Dunn should be delivered up and cancelled, and that his loan deed be declared the first loan against the property.
Dunn by his answer alleged that the debt of the Sanders to Gilbert had been fully paid and that the security deed held by Gilbert should be cancelled.
On the trial of the case the court submitted only one question to the jury, viz. 'Has the debt for which the deed from Joseph L. Sanders, Sr., and Elizabeth Ann Sanders to J. Carl Gilbert been paid?' The jury gave an affirmative answer. Gilbert filed a motion for a new trial on the general grounds. He amended with three special grounds, but these merely amplified the general grounds by specifically pointing out wherein the verdict was decidedly and strongly against the weight of the evidence. The court entered an order granting a new trial.
The first grant of a new trial on the general grounds will not be disturbed by this court unless it be shown that the trial judge abused his discretion and that the law and facts required the verdict rendered notwithstanding the judgment of the trial court. Code (Ann.) § 6-1608 as amended. Ga.L.1959, p. 353. We have examined the evidence and cannot say that the evidence demanded a finding that the debt of the Sanders to Gilbert had been paid. The case at bar is...
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Durrett v. Farrar
...court will not review the order timely taken which vacated the discretionary grant of a new trial on general grounds. See Dunn v. Gilbert, 217 Ga. 358, 122 S.E.2d 93. 4. It is obvious that the trial judge withdrew his original order for the purpose of specifying the particular grounds which......
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Interstate Life & Acc. Ins. Co. v. Upshaw
...no error in the first grant of a new trial on the general grounds. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496; Dunn v. Gilbert, 217 Ga. 358, 359, 122 S.E.2d 93; The Kroger Co. v. Perpall, 105 Ga.App. 682, 125 S.E.2d 4. That the motion for new trial stated an erroneous date for the ve......
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Read v. Gulf Oil Corp.
...abused its discretion and that the law and facts required the verdict notwithstanding the judgment of the trial court. Dunn v. Gilbert, 217 Ga. 358, 122 S.E.2d 93. However, the uncontradicted testimony of the defendant shows that she gave the plaintiff written notice in the fall of 1963 to ......
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O'Neal v. State
...absent an abuse of discretion in that the evidence demanded the verdict rendered. See OCGA §§ 5-5-50; 5-5-51, and Dunn v. Gilbert, 217 Ga. 358, 359, 122 S.E.2d 93 (1961). However, the first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal.......