State Highway Dept. v. Smith, 43369
| Decision Date | 09 February 1968 |
| Docket Number | No. 3,No. 43369,43369,3 |
| Citation | 117 Ga.App. 210,160 S.E.2d 215 |
| Parties | STATE HIGHWAY DEPARTMENT v. Anna SMITH |
| Court | Georgia Court of Appeals |
Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, F. H. Boney, Deputy Asst. Atty. Gen., Summerville, for appellant.
Joe B. Tucker, Ringgold, for appellee.
Syllabus Opinion by the Court
1. The judgment appealed from states: 'After hearing argument of counsel for both parties, the court hereby sustains ground 4 of the motion for new trial.' In the present state of the law, our first decision must be whether this court, on the first grant of a new trial, may limit its review to the question of law raised by this special ground, or whether no reversal may be had unless it appears that a contrary verdict is demanded by the evidence as a whole. Code Ann. § 6-1608 is based on Ga.L.1959 p. 353, which the Supreme Court construed in CTC Finance Corp. v. Holden, 221 Ga. 809, 147 S.E.2d 427 to have been ineffective for its purpose. 'Section 6-1608 of the Official Code was not repealed thereby.' Id., p. 811, p. 429 of 147 S.E.2d. Under this section, the first grant of a new trial, even though solely on a special ground raising only a question of law, would not be reversed unless the verdict rendered was demanded by the evidence. Cox v. Grady, 132 Ga. 368, 64 S.E. 262; Mobley v. Bell, 177 Ga. 876(1), 171 S.E. 701. These decisions are based on the premise that the appellate court should inquire whether the trial judge was right in granting the new trial notwithstanding his reason for doing so might have been incorrect. In the present case, however, the appellant expressly abandoned both the general and all other special grounds of the motion at the time the court passed upon it, leaving the issue of new trial vel non to be determined solely on the issue presented by ground 4. Since under these facts the trial judge could not, even had he wished, granted a new trial on any other point, and since he had no discretion in the matter after the general grounds were abandoned, it is the duty of this court to review the issue as raised by the parties and decided by the court.
2. A motion to set aside a verdict on the ground that one of the jurors was not a resident of the county at the time of the trial raises an objection propter defectum, and arises too late after the verdict, though the movant did not know the fact alleged until after the verdict. Brown v. State, 105 Ga. 640(1), 31 S.E. 557; Taylor v. Warren, 175 Ga. 800(3), 166 S.E. 225; Trammell v. State, 183 Ga. 711(5), 189 S.E. 529.
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Collins v. State, A04A0362.
...(Citations and punctuation omitted.) Trammell v. State, 183 Ga. 711, 715(5), 189 S.E. 529 (1937); accord State Hwy. Dept. v. Smith, 117 Ga.App. 210, 211(2), 160 S.E.2d 215 (1968). 14. Keener v. State, 238 Ga. 7, 8, 230 S.E.2d 846 (1976). 15. See Price v. Georgia, 398 U.S. 323, 327, 90 S.Ct.......
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Speer v. Gemco Elevator Co., Inc.
...by the appellate court to be without merit, the judgment granting the new trial on that ground will be reversed. State Highway v. Smith, 117 Ga.App. 210, 160 S.E.2d 215; State Highway Dept. v. Rosenfeld, 120 Ga.App. 439, 170 S.E.2d 837. Moreover, even where the trial court grants a new tria......
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Collins v. State, A04A0362 (Ga. App. 3/23/2004), A04A0362.
...(Citations and punctuation omitted.) Trammell v. State, 183 Ga. 711, 715 (5) (189 SE 529) (1937); accord State Hwy. Dep't. v. Smith, 117 Ga. App. 210, 211 (2) (160 SE2d 215) (1968). Judgment affirmed; sentence on Count 2 vacated; and case remanded with direction. Ruffin, P. J., and Miller, ......
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