Buchanan v. Nash

Mobley, Justice. 1. “The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” Code § 6-1608. 2. “Although the plaintiff’s action was formerly dismissed upon a general demurrer thereto, and this judgment was reversed by this court . . . there has, as yet, been but one trial on the merits. The same having resulted in a verdict for the plaintiff, and a new trial having been granted, the case falls within the established rule applicable to the first grant of a new trial.” Denson v. Denson, 97 Ga. 359 (23 S. E. 838). *875 Argued September 15, 1955 Decided October 11, 1955. C. W. Buchanan, for plaintiff in error. Weekes & Candler, contra. 3. “Where the damages sued for are not liquidated, but are speculative only, and rest in the discretion of the jury under the evidence, notwithstanding the evidence may demand a finding that the defendant is liable to the plaintiff in some amount, a verdict in the amount found by the jury is not as a matter of law demanded.” Lawson v. Lawson, 61 Ga. App. 787 (2) (7 S. E. 2d 603). 4. Applying the above principles, where, as here, the verdict as rendered is not demanded by the law and the evidence, this court will not interfere with the discretion of the trial judge in granting a first new trial. Solomons & Co. v. Merchants &c. Transportation Co., 121 Ga. 88 (48 S. E. 687); Cox v. Grady, 132 Ga. 368 (64 S. E. 262); Sims Estates v. Walker, 209 Ga. 534 (74 S. E. 2d 465). Judgment affirmed. All the Justices concur.