Craven v. Allen , 118 Ga. App. 462 ( 1968 )

Pannell, Judge,

concurring specially. After the verdict was

published both defendants moved for a mistrial and the trial judge entered an order declaring a mistrial. The plaintiff appellant later filed a motion to set aside this order and for judgment in/ accordance with the verdict of the jury. The trial judge entered an order overruling and denying appellant’s motion to set aside the order granting the mistrial and to enter judgment in accordance with the verdict of the jury. The appellant entered an appeal from this judgment.

I concur in the interpretation placed upon Section 20 of the Civil Practice Act (Ga. L. 1966, pp. 609, 631; Code Ann. § 81A-120) but not on the basis of the interpretation by the federal court that as a federal rule it did not affect the state law, but solely on the basis that this rule as enacted into the law of this state, does not change the rule prohibiting the apportionment of the damages in a verdict against joint tortfeasors. It is my opinion that a motion for mistrial cannot be used as a method of attack on an allegedly void verdict; however, since the trial judge on his own motion had authority to set aside the verdict there is no cause for reversal. Since this case is being affirmed I have passed over the question of whether the appeal should be dismissed for the reason that a certificate of the trial judge providing for appeal of the order overruling the motion to set aside the grant of the “mistrial” and overruling the motion to enter a judgment in accordance with the verdict does not appear to have been entered in accordance with Sec. 1, Subpar. (2) of the Act approved April 8, 1968 (Ga. L. 1968, p. 1072).