Gresham v. Lee ( 1922 )

Stephens, J.

1. The first grant of a new trial, whether on motion made in the court in which the trial was had or on certiorari, will always be affirmed unless the verdict and judgment rendered were as a matter of law demanded. This is true even though the new trial was granted upon some ground other than the discretionary grounds, and even though the judge in granting the new trial had no jurisdiction to pass upon the discretionary grounds, and even though the court may have committed error in passing upon the specific ground upon which it awarded a new trial. See in this connection, Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (33 S. E. 471); Cox v. Grady, 132 Ga. 368 (64 S. E. 262).

Decided May 23, 1922.

Certiorari; from Fulton superior court — Judge George L. Bell. October 27, 1920.

Neufville & Neufville, for plaintiff. Ernest Buchanan, for defendant.

2. Where a petition for certiorari excepts to a verdict and judgment ren- . dered in the municipal cqurt of Atlanta when no motion for a new trial was made in that court, and the verdict and judgment are excepted to as being contrary to the weight of the evidence, and also excepted to as being unsupported by any evidence, the judgment of the superior court granting a new trial will, if it be the first grant of a new trial, be affirmed in this court when the verdict and judgment rendered were not as a matter of law demanded, even though the judge of the superior court had no jurisdiction, under the rulings in Gresham v. Lee, 152 Ga. 829 (111 S. E. 404), to set aside the judgment and. award a new trial upon the first assignment of error in the petition for certiorari, viz., that the verdict and judgment were contrary to the weight of the evidence; and this is true even though it was error to reverse the judgment of the municipal court upon the ground that the verdict and judgment were unsupported by the evidence.

3. There being a valid assignment of error in the petition for certiorari viz., that the verdict and judgment were unsupported by the evidence, and it appearing that the verdict and judgment rendered in the municipal .court of Atlanta' were not demanded as a matter of law, as ruled by the Supreme Court in answer to certified questions in this case (152 Ga., supra), the judgment of the superior court, sustaining the certiorari and awarding a new trial, is affirmed.

Judgment affirmed.

Hill, J., concurs, Jenkins, P. J., dissents.