Branch v. Branch , 211 Ga. 22 ( 1954 )

211 Ga. 22 (1954) 83 S.E.2d 601

BRANCH
v.
BRANCH.

18671.

Supreme Court of Georgia.

Submitted July 13, 1954. Decided September 13, 1954.

C.O. Purcell, for plaintiff in error.

Dan S. Cowart, contra.

HAWKINS, Justice.

Mrs. Shellie D. Branch brought an action on May 18, 1951, in Tattnall Superior Court against her husband, Tommie A. Branch, wherein she sought a divorce upon the ground of cruel treatment, and certain injunctive relief to restrain the defendant from interfering with the plaintiff or her property. To this petition the defendant filed his answer and cross-bill, wherein he denied the plaintiff's right to divorce or any injunctive relief, and sought a verdict and decree of the court that title to a described 54-acre tract of land, title of which was in the plaintiff, be decreed into him by reason of an alleged implied trust arising from his payment of a part of the purchase price thereof. On the trial the jury returned a verdict on June 2, 1952, finding in favor of the plaintiff for a total divorce, for removal of the defendant's disabilities, and in favor of the defendant on his cross-bill the 54-acre tract of land described therein. A decree following the verdict of the jury was duly entered. The plaintiff filed her motion for a new trial based on the general grounds on June 3, 1952, which was thereafter amended by the addition of six special grounds complaining of the admission of evidence, the charge of the court, and the failure to charge with respect to the alleged implied trust set up by the defendant's cross-bill. The motion was continued from time to time until April 27, 1954, when it was denied. To this judgment the plaintiff excepts. Held:

This case is controlled by the rulings of this court in Goldberg v. Goldberg, 209 Ga. 372 (72 S.E.2d 709), and cases there cited. The filing of a proper written petition to modify or set aside the verdict within thirty days from the rendition and entering thereof, as required by Code (Ann.) § 30-101, is a prerequisite to any review of the case in the Supreme Court, a motion for a new trial not being an available remedy to review cases of this character. It follows that the trial judge did not err in denying the amended motion for a new trial.

Judgment affirmed. All the Justices concur.