Sims Estates Inc. v. Walker

Head, Justice. The plaintiff filed a petition to recover a described strip of land 6.8 feet wide. The defendant filed an answer, and on the trial a verdict was returned for the plaintiff. The defendant filed a motion for new trial, which was later amended. After consideration of the motion, as amended, the trial judge granted a new trial, and the exception is to that judgment. Held: 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. See Stegall v. Baker, 76 Ga. 107; Adams v. Hancock, 103 Ga. 561 (29 S. E. 715); Wimburn v. Fiske, 140 Ga. 132 (78 S. E. 717); Baker v. McGarr, 187 Ga. 533 (1 S. E. 2d, 403); Webb v. Nobles, 195 Ga. 287 (24 S. E. 2d, 27). 2. In the present case there were conflicts in the evidence on material issues. One call in the deed upon which the plaintiff relied is “179 feet to a second alley.” The plaintiff insists that this alley was not established by any evidence. The president of the corporate plaintiff testified that “There was an alley there.” The plat introduced by the plaintiff (Exhibit A) shows the location of the alley. The defendant’s evidence would have authorized a finding as to the existence of the alley, and the other evidence for the plaintiff was not sufficient to demand a finding that the alley did not exist. [535] No. 18077. Submitted January 15, 1953 Decided February 9, 1953. Hudson & LeCraw, J. Walter LeCraw and Stephens Mitchell, for plaintiff in error. J. V. Poole and C. B. Walker, contra. (a) On the question of possession, there were material conflicts in the evidence. See Blalock v. Thomas, 176 Ga. 407, 409 (168 S. E. 13). Judgment affirmed. All the Justices concur, except Atkinson, P. J., and Wyatt, J., not participating.