Fuller v. Cox

Felton, J. Code § 6-1608 provides: “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.” Glenn v. Tankersley, 187 Ga. 129 (200 S. E. 709); Townsend v. Rechsteiner, 195 Ga. 618 (24 S. E. 2d, 776). The power of a judge to grant a new trial applies to cases where verdicts are directed. Hardin Supply Co. v. Parkerson, 53 Ga. App. 342 (185 S. E. 591); Hunter v. Hall, 57 Ga. App. 321 (195 S. E. 327); Lawson v. Lawson, 61 Ga. App. 787 (1) (7 S. E. 2d, 603); Flag Fish Co. Inc. v. Mann Seafood Inc., 72 Ga. App. 484 (6) (34 S. E. 2d, 294). For the right of the defendant to except to a verdict and judgment see Ga. L. 1946, pp. 761, 777; Code, Ann. Supp., §110-401). The court did'not state in his order granting a new trial that it was not granted in the exercise of his discretion and his note in the record does not require a finding that he did not. But even if he did not exercise a discretion the evidence did not demand the verdict directed and this court, under the Code section cited and the rulings of the Supreme Court on the question, will not interfere with the first grant of a new trial. There may be other reasons why the evidence did not demand the verdict directed but several may be mentioned. A jury would not have been bound by the opinion of the witness as to the reasonable rental of the property or the value of the timber cut. There was no evidence as to how much timber was cut or the value per 1000 feet. There was no evidence that the plaintiffs were jointly entitled to recover anything, etc. The court did not err in granting a new trial. Judgment affirmed. Sutton, C. J., and Worrill, J., concur. ■