Freeman v. Franklin , 47 Ga. App. 265 ( 1933 )

Jenkins, P. J.

1. The motion to dismiss the bill of exceptions, being upon the sole ground of an insufficient assignment of error as it appears only in the petition for certiorari, is manifestly without merit, and is therefore denied.

2. The first grant of a new trial by sustaining a certiorari, where the verdict was not demanded by the evidence, will not be disturbed, though based on a special ground of the motion, regardless of the merit of such ground. Atlantic & Birmingham Ry. Co. v. Cobb, 125 Ga. 121 (53 S. E. 591); Smith v. Hightower, 123 Ga. 110 (51 S. E. 28); Elliott v. McCalla, 123 Ga. 26 (50 S. E. 960) ; Sunbeam Heating Co. v. Mason, 42 Ga. App. 265 (155 S. E. 769) ; National Union Fire Ins. Co. v. Ozburn, 38 Ga. App. 276 (143 S. E. 623). The denial by the superior court of the certiorari and its remand of the case to the municipal court for a retrial, after the first grant of a new trial by the appellate division of the municipal court, being the equivalent of a first grant of a new trial by sustaining a certiorari, and the evidence being conflicting, under the general grounds of the motion for new trial the judgment of the superior court will be affirmed.

3. The special ground of the motion for a new trial, based on the alleged incompleteness of the charge of the court relative to one of the phases of the instant claim case, does not raise such a question as will likely arise upon the second trial of the case, and therefore need not be considered or determined.

Judgment affirmed.

Stephens and Sutton, JJ., concur. C. L. Padgett, Louis E. Foster, George G. Finch, for plaintiff. J. V. Poole, for defendants.