Warren v. Mann
Court | United States Court of Appeals (Georgia) |
Citation | 161 S.E.2d 894,117 Ga.App. 787 |
Docket Number | No. 43670,No. 3,43670,3 |
Parties | Billy WARREN et al. v. James W. MANN et al |
Decision Date | 17 May 1968 |
Bullock, Yancey, & Mitchell, Kyle Yancey, Atlanta, for appellants.
Heyman & Sizemore, Thomas Henry Nickerson, Atlanta, for appellees.
Syllabus Opinion by the Court
1. In a civil case a trial judge may in his discretion grant a new trial without a transcript of the evidence and proceedings, either on motion of a party or ex mero motu. Ga.L.1965, pp. 18, 30; Code Ann. § 70-301. Absent a contrary showing this court will presume that he did consider the evidence in granting a motion on grounds requiring such consideration. See A. M. Kidder & Company, Incorporated v. Clement A. Evans & Company, Incorporated, 117 Ga.App. 346, 160 S.E.2d 869. The grant of a new trial is appropriate when it appears to the trial judge that the refusal to take such action would be inconsistent with substantial justice. Ga.L.1966, pp. 609, 664; Code Ann. § 81A-161.
2. Appellate courts will not disturb the ruling of a trial judge acting in his discretion on the first grant of a new trial solely on general grounds, absent any showing by the appellant that the trial judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding his judgment. Code § 6-1608. See the discussion in CTC Finance Corporation v. Holden, 221 Ga. 809, 147 S.E.2d 427, with respect to the unqualified power of superior and city courts in respect to the grant of new trials, and the effect of the 1959 enactment (Ga.L.1959, p. 353) on Code § 6-1608. Also, see Peak v. Cody, 113 Ga.App. 674, 675(1, 2), 149 S.E.2d 519; Howard v. Biles, 117 Ga.App. 384, 385(2), 160 S.E.2d 620. The effect and validity of § 50(c)(1) of the Civil Practice Act, as amended (Ga.L.1966, pp. 609, 657; 1967, pp. 226, 248; Code Ann. § 81A-150(c)(1)) requiring the trial court to specify the grounds on which a new trial is granted, in connection with the grant of a judgment n.o.v., is not in issue in the case sub judice. 3. Where, as here, the plaintiffs in the lower court seek a reversal of the first grant of a new trial on motion of the defendants limited to general grounds, and it appears that the trial court, having directed a verdict for the plaintiffs, on which judgment was entered, granted a new trial solely on general grounds (as to which there is no dispute, although the order itself is silent as to the...
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