O'Kelley v. Central of Georgia Railway Co.

Bboyíes, J. 1. This is the third appearance here of this ease, [413] and upon its last review this court held as follows: “It appears, from the express recitals in the order of the trial judge overruling the motion for a new trial, that he did not exercise his discretion in passing upon the motion; and for this reason the judgment is reversed, and the case is sent back with direction that the trial judge pass upon the motion, in the exercise of the discretion with which he is charged by law. McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606); M., D. & S. R. Co. v. Anchors, 140 Ga. 531-535 (79 S. E. 153); Savannah Electric Co. v. Lackens, 12 Ga. App. 765-767 (79 S. E. 53), and cases there cited.” Central of Georgia Ry. Co. v. O’Kelley, 16 Ga. App. 594 (3), 595 (85 S. E. 938). Thereafter the judgment of this court was made the judgment of the lower court, and the trial judge, in the exercise of his discretion, granted a new trial. All the points argued by learned counsel for the plaintiff in error are absolutely controlled and concluded by the adjudication of this court when the case was last under review. See Central of Georgia Ry. Co. v. O’Kelley, supra. The only question now before us is whether the trial judge abused his discretion in granting a new trial, and it has not been made to appear to us that he did so. Judgment affirmed.