Swindell v. Swindell, 27827
| Decision Date | 04 October 1973 |
| Docket Number | No. 27827,27827 |
| Citation | 200 S.E.2d 736,231 Ga. 167 |
| Parties | Henry R. SWINDELL v. Mary L. SWINDELL. |
| Court | Georgia Supreme Court |
Reinhardt, Whitley & Sims, Bob Reinhardt, Glenn Whitley, Tifton, Knight & Perry, W. D. Knight, Nashville, for appellant.
Jack Knight, Nashville, for appellee.
Syllabus Opinion by the Court
This is an appeal from a judgment rendered in a divorce and alimony case. Appellee-wife brought an action below against appellant-husband seeking a divorce and alimony. The husband filed a counterclaim in which he asked for a divorce and also sought to have certain property interest of the wife decreed to be his property rather than hers.
A jury trial followed, and the jury's verdict granted a divorce to the husband and granted certain specified property to the wife as permanent alimony.
The jury's verdict was made the judgment of the court, and the husband filed a motion for a new trial. The motion for a new trial was amended twice and then overruled by the trial judge. The first amendment stated that the husband was not seeking a new trial on the issue of divorce but only on the issue of property division between the parties as permanent alimony for the wife. This amendment thus converted the motion for a new trial into a motion for a partial new trial.
Code § 30-130 says: 'New trials may be granted in divorce suits as in other cases.' Following a jury trial, a jury verdict, and a judgment, we have never before encountered a motion for a partial new trial.
In this case the husband's motion in effect says that the portion of the trial resulting in a divorce being awarded to him was all right, free from error, and that portion of the trial and the resulting verdict and judgment should stand. The portion of the trial, the portion of the verdict, and the portion of the judgment that he complains about as being erroneous all relate to the division of property and that property awarded to the wife as permanent alimony.
Can a party who considers that he has partially lost his case seek, through the vehicle of a motion for a new trial, a re-trial of only that part of the case that he considers that he has lost, while at the same time contending that that part of the case that he considers he has won is free from error and should be sustained?
It is readily seen that where a movant in a motion for a new trial is seeking to uphold a part of the verdict and a part of the judgment, the usual general grounds of a motion for a new trial are obviously without merit.
In this case, a number of the grounds of the amended motion for a new trial and several of the errors based thereon and enumerated in this court point to alleged infirmity of the entire trial, not just that portion of the trial relating to the award of permanent alimony. Some alleged errors relate to the sequestration of witnesses, the admission of rebuttal testimony over objection that it was clearly not rebuttal evidence, and the admission in evidence of a Colt pistol box as an exhibit over the husband's objection. Clearly these alleged errors, if they be meritorious, would require a reversal of the whole judgment rendered in the case, and it would follow that a new trial must be granted on all of the issues in the case.
We have been unable to find a divorce and alimony case in this jurisdiction wherein the movant in a motion for a new trial moved only for a partial re-trial on part but not all of the issues decided by the verdict and judgment in the case. Therefore, the motion for a partial new trial in this case appears to be an issue of first impression that must now be decided.
In the case of Boone v. Boone, 192 Ga. 579, 15 S.E.2d 868 (1941), the husband was awarded a divorce and the wife was awarded alimony. The wife moved for a new trial, not a partial new trial but a whole new trial. The trial judge overruled the motion for new trial insofar as it referred to a divorce, and the second verdict of the jury finding for a total divorce was affirmed. That part of the motion for new trial referring to alimony was granted, and a new trial was ordered on the question of permanent alimony. On appeal this court affirmed the authority of the trial judge to deny a new trial on the divorce issue and grant a new trial on the alimony issue. However, we read the decision in Boone to mean that a trial court or an appellate court, after examining the record and transcript to determine if the issues are readily...
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Anthony v. Anthony
...decided from those wrongly decided, (it) can order a re-trial only of those issues that can be separated . . ." Swindell v. Swindell, 231 Ga. 167, 169, 200 S.E.2d 736, 737. In the case sub judice, the verdict and judgment were rendered in separate divisions and thus could easily be separate......
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Swindell v. Swindell
...deed to appellant in an effort to defeat appellee's rights in a divorce and alimony decree, affirmed by this court in Swindell v. Swindell, 231 Ga. 167, 200 S.E.2d 736. Appellee served interrogatories upon appellant's attorney on August 7, 1974. No answers having been served within the 30-d......
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White v. White
...had already been granted, all the contestable issues had been resolved, and the time for appeal had passed. In Swindell v. Swindell, 231 Ga. 167, 200 S.E.2d 736 (1973), this Court considered whether a motion for a new trial as to only part of a judgment would lie, and concluded it would. Si......
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Department of Transp. v. Kendricks, 56542
...judgment, but only that portion that is erroneous. Chicago Bldg. etc. Co. v. Butler, 139 Ga. 816, 78 S.E. 244. See Swindell v. Swindell, 231 Ga. 167, 169, 200 S.E.2d 736; Anthony v. Anthony, 143 Ga.App. 691, 694, 240 S.E.2d 167. Accordingly, the judgment is affirmed with direction that the ......