Noles v. Andalusia Casket Company

1. It is the well-settled rule that this court will not, under any circumstances, reverse a judgment granting a first new trial unless it is made to appear that the verdict rendered was demanded under the law and the facts of the case and that no other verdict could legally have been returned. Moody v. Moody, 195 Ga. 13 (22 S.E.2d 836), and citations; Brooks v. Jackins, 38 Ga. App. 57 (142 S.E. 574); Code, § 6-1608.

2. The present action was a suit on account against the administrators of an estate, and the evidence demanded a finding that the account was due and unpaid. The defendants filed a plea of plene administravit praeter, and the evidence in support of this plea was vague, uncertain, and indefinite, was partly in conflict with the evidence for the plaintiff, and did not demand the verdict in favor of the defendants.

3. The verdict for the defendants not being demanded under the law and the evidence, the discretion of the judge in the first grant of a new trial will not be disturbed. Oliver v. Head, 60 Ga. App. 13 (2 S.E.2d 716); Sullivan v. Dixon, 72 Ga. App. 507 (34 S.E.2d 318).

Judgment affirmed. Felton and Parker, JJ.,concur.

DECIDED JUNE 26, 1946.