Leventhal v. Baumgartner

209 Ga. 404 (1952) 73 S.E.2d 194

LEVENTHAL
v.
BAUMGARTNER et al.

17996.

Supreme Court of Georgia.

Argued October 14, 1952. Decided November 12, 1952.

Reese, Bennet & Gilbert, for plaintiff in error.

Gowan, Conyers, Fendig & Dickey, contra.

ATKINSON, Presiding Justice.

Where a new trial has been granted, the case stands ready for trial as if there had been no trial. The effect of the grant of a new trial by this court is to require the case to be heard de novo unless specific direction be given in regard thereto. Code, § 70-401; Anderson v. Clark, 70 Ga. 362 (2). And notwithstanding the plaintiff in error, in the first trial, made a written request for a charge on the law of undue influence, yet, upon the second trial it was error for the trial judge to charge on that subject where there was no evidence to authorize a charge on undue influence.

Judgment reversed. All the Justices concur, except Duckworth, C. J., and Head, J., who dissent.

HEAD, Justice, dissenting. The statement of facts in the present case clearly shows that the trial court did not unqualified approve amended grounds 4, 5, and 6, relating to the charge of the court, and these grounds of the motion present no question for decision by this court. Mims v. Mims, 151 Ga. 330 (106 S.E. 279); Godsey v. State, 171 Ga. 233 (155 S.E. 28); Gay v. State, 173 Ga. 793 (161 S.E. 603); Hatcher v. State, 176 Ga. 454 (168 S.E. 278); Clifton v. State, 187 Ga. 502 (2 S.E. 2d, 102); Andrews v. State, 196 Ga. 84, 86 (14) (26 S.E. 2d, 263).

The amended grounds of the motion for new trial not having been unqualified approved by the trial judge, there is nothing properly before this court except the general grounds of the motion for new trial, and the evidence being amply sufficient to support the verdict, the judgment denying the motion for new trial should be affirmed.

I am authorized to say that Mr. Chief Justice Duckworth concurs in this dissent.