Whitehead v. Dillard
| Decision Date | 25 April 1973 |
| Docket Number | No. 48017,No. 2,48017,2 |
| Citation | 129 Ga.App. 5,198 S.E.2d 376 |
| Parties | Mary WHITEHEAD v. Dilmus DILLARD |
| Court | Georgia Court of Appeals |
Guy B. Scott, Jr., Athens, for appellant.
Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, Athens, for appellee.
Syllabus Opinion by the Court
Where a motion for new trial is sustained, such ruling is not a final disposition of the case. Accordingly it is not appealable without a certificate of immediate review from the trial court. Code Ann. § 6-701 (Ga.L.1965, p. 18; 1968, pp. 1072, 1073); State Highway Dept. v. Rosenfeld, 118 Ga.App. 524, 164 S.E.2d 259, Pilgreen's Airport, Inc. v. Gold, 122 Ga.App. 194, 176 S.E.2d 480. See also Fife v. Johnston, 225 Ga. 447, 169 S.E.2d 167, where our Supreme Court recognized that 'Cruel though it was for the law to thus authorize a judge to deprive the loser of a right to appeal, we cannot say the law is unconstitutional.'
In the instant case the trial judge granted a new trial to defendant following a plaintiff's verdict upon the special ground tht he had erred in denying defendant's motion for mistrial based on improper statements in the closing argument of plaintiff's attorney. As this was not a new trial granted on the discretionary general grounds, it was appealable, provided appellant had obtained a certificate of immediate review. Rice v. Matthews, 104 Ga.App. 593(1), 122 S.E.2d 175; Southern States, Inc. v. Thomason, 128 Ga.App. 667, 197 S.E.2d 429. The record here containing no requisite certificate, our court is without jurisdiction and the motion to dismiss is sustained.
Appeal dismissed.
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...70-208; Code Ann. § 81A-150(c)(1).' Southern States v. Thomason, 128 Ga.App. 667, 668(1), 197 S.E.2d 429, 431. Accord, Whitehead v. Dillard, 129 Ga.App. 5, 198 S.E.2d 376; Durrett v. Farrar, 130 Ga.App. 298, 302(4), 203 S.E.2d 265. Accordingly, if the special ground upon which the new trial......
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