Gresham v. Lee
| Decision Date | 23 May 1922 |
| Docket Number | 12020. |
| Citation | 112 S.E. 524,28 Ga.App. 576 |
| Parties | GRESHAM v. LEE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The first grant of a new trial, whether on motion made in the court in which the trial was had or on certiorari, will always be affirmed unless the verdict and judgment rendered were as a matter of law demanded. This is true even though the new trial was granted upon some ground other than the discretionary grounds, and even though the judge in granting the new trial had no jurisdiction to pass upon the discretionary grounds, and even though the court may have committed error in passing upon the specific ground upon which it awarded a new trial. See in this connection Weinkle v. Brunswick & Western Ry., 107 Ga. 367, 33 S.E. 471; Cox v. Grady, 132 Ga. 368, 64 S.E. 262.
Where a petition for certiorari excepts to a verdict and judgment rendered in the municipal court of Atlanta when no motion for a new trial was made in that court, and the verdict and judgment are excepted to as being contrary to the weight of the evidence, and also excepted to as being unsupported by any evidence, the judgment of the superior court granting a new trial will, if it be the first grant of a new trial, be affirmed in this court if the verdict and judgment rendered were not as a matter of law demanded, even though the judge of the superior court had no jurisdiction under the rulings in Gresham v. Lee, 152 Ga. 829, 111 S.E. 404, to set aside the judgment and award a new trial upon the first assignment of error in the petition for certiorari, viz. that the verdict and judgment were contrary to the weight of the evidence; and this is true even though it was error to reverse the judgment of the municipal court upon the ground that the verdict and judgment were unsupported by the evidence.
There being a valid assignment of error in the petition for certiorari, viz. that the verdict and judgment were unsupported by the evidence, and it appearing that the verdict and judgment rendered in the municipal court of Atlanta were not demanded as a matter of law, as ruled by the Supreme Court in answer to certified questions in this case (152 Ga. 829, 111 S.E. 404), the judgment of the superior court in sustaining the certiorari brought by the defendant in the municipal court of Atlanta, and awarding a new trial is affirmed.
Error from Superior Court, Fulton County; Geo. L. Bell, Judge.
Action by W. B. Gresham against M. M. Lee. Judgment for plaintiff and certiorari sustained and new trial granted in the superior court, and plaintiff brings error. Affirmed in conformity to Supreme Court's answer to certified questions (152 Ga. 829, 111 S.E. 404).
Neufville & Neufville, of Atlanta, for plaintiff in error.
Ernest Buchanan, of Atlanta, for defendant in error.
Judgment affirmed.
There is no difference of opinion between my colleagues and myself as to the meaning of the rulings made by the Supreme Court in answer to the questions certified to it in this case. I differ with them only as to the effect of these rulings. As I see it, they require that the judgment of the superior court, setting aside the finding rendered in the municipal court of Atlanta should be reversed, so that the finding and judgment for the plaintiff in the municipal court should stand as rendered.
In response to questions propounded to it in this case, the Supreme Court has held that, where property has been listed for sale with two or more real estate brokers, and one of them, with the knowledge of the owner, has interested a customer in the purchase, and, while the negotiations with such broker are still pending, the owner proceeds to close the sale with the same customer through another broker, the second broker being the first to present the customer as ready, able, and willing to buy, and actually offering to buy at the price and on the terms stipulated by the owner, the efforts of the second broker in thus actually closing the trade cannot, as a matter of law, be regarded as the procuring cause of the sale, so as to exclude the first broker's claim against the owner for commissions, although it may further appear that the owner, pending such negotiations, has committed no act of bad faith between the brokers, and there has been no interference by him in favor of the second broker. Under this ruling, since the question as to which broker was the actual procuring cause of the sale cannot thus be adjudged as a matter of law, but remains a question of fact, governed by the particular circumstances of the case, the owner, under such circumstances, proceeds at his peril in effecting the sale and paying the commissions to the second broker actually closing the sale. Gresham v. Lee, supra, 152 Ga. 829, 111 S.E. 404.
The plaintiff in the municipal court, who was the first broker, obtained a judgment in his favor against the owner for the commissions, and the judge of the superior court sustained a certiorari, and granted a new trial. The grounds contained in the petition for certiorari are but two: (1) That the finding and judgment of the municipal court is contrary to the weight of the evidence; and (2) that it is contrary to law as being without any evidence to support it. The petition for certiorari was sustained generally, and a new trial granted without seeking to base the decision upon either ground.
The questions for our consideration are: (1) Was the judge in the instant case authorized to set aside the finding and judgment of the municipal court and grant a new trial upon the ground of certiorari that the judgment was against the weight of the evidence? or (2) that it was contrary to law as being without evidence to support it? and, (3) if he was not so authorized upon either of the grounds set forth, must his erroneous judgment be nevertheless affirmed by this court solely as a matter of appellate policy, under the general rule, and for the same reason underlying it that the evidence did not demand a finding in favor of the prevailing party, even though the case be one where the judge was not permitted to entertain or consider any question relating to the weight of the evidence? It is only as to this last proposition that any difference exists between my colleagues and myself.
In regard to the first of these propositions, the Supreme Court has held, in response to another question propounded to it in this case, that, under subdivisions (a) and (b) of section 42 of the act creating the municipal court of Atlanta (Laws 1913, p. 167), a petitioner in certiorari from that court, "who has made no motion for a new trial, * * * nor appealed to the appellate division thereof, has no right to urge that a finding and judgment in that court, on a trial without a jury, is contrary to the weight of evidence." Gresham v. Lee, supra. It thus appears that the judge of the superior court was without jurisdiction even to entertain or consider the first of the two assignments of error contained in the petition for certiorari. This being true, his judgment granting a new trial therein could not have been based on that ground.
In regard to the second of the propositions we are now considering, it was and is a question of law whether a verdict contrary to the one rendered in the municipal court was or was not demanded. As was said by Justice Cobb in Toole v. Edmondson, 104 Ga. 776, 784, 31 S.E. 25, 29:
Nothing contained in the record outside of the facts stated in the question propounded could possibly authorize this court to say that a judgment in favor of the losing party was demanded. Since the facts there stated do not demand a judgment in his favor, there is nothing else contained in the record which can. Indeed, it is intimated by the Supreme Court that, considering the record as a whole, the judgment as actually rendered might have been demanded. It follows that since, as a matter of law, the verdict rendered was not without evidence to support it, the judge of the superior court was not authorized to grant a new trial on this the second ground contained in the petition for certiorari.
This brings us to the third and last proposition which we are now considering, and the only one about which I differ with my colleagues, viz. must the unauthorized grant of a new trial be sustained and the erroneous judgment be affirmed by this court purely as a matter of appellate policy, under the general rule and for the same reason which underlies it, to wit, because the evidence does not demand a finding in favor of the prevailing party, even though in the case at bar the Supreme Court has decided that the judge of the superior court was not authorized to entertain or consider any question relating to the weight of the evidence.
It is well settled that a judgment sustaining a certiorari for the first time is "equivalent to the first grant of a new trial," and that the discretionary powers of the judge there stand upon the same footing as that of a trial judge under section 6204 of Civil Code 1910. Strickland v....
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