O.C.G.A. § 5-5-1 (2019)

Annotations

Editor’s notes. - Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986. Law reviews. - For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey of 1995 Eleventh Circuit cases on trial practice

and procedure, see 47 Mercer L. Rev. 907 (1996). For annual survey article, ‘‘ ‘Garbage In, Garbage Out’: The Litigation Implosion Over the Unconstitutional Organization and Jurisdiction of the City Court of Atlanta,’’ see 52 Mercer L. Rev. 49 (2000).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, § 1056 are included in the annotations for this Code section. Section grants superior courts power to correct errors and grant new trials. Frank v. State, 142 Ga. 741, 83 S.E. 645, 1915D L.R.A. 817, writ of error denied, 235 U.S. 694, 35 S. Ct. 208, 59 L. Ed. 429 (1914) (decided under former Code 1933, § 70-102, at time when section referred only to superior courts; see O.C.G.A. § 5-5-1). Superior court of the county in which defendant was convicted of murder had authority, on defendant’s motion for new trial, to order an expert evaluation of the defendant, who was incarcerated beyond the boundaries of the county in which the

court sat. Zant v. Brantley, 261 Ga. 817, 411 S.E.2d 869 (1992). What constitutes a city court. - Welborne v. State, 114 Ga. 793, 40 S.E. 857 (1902) (decided under former Penal Code 1895, § 1056). Municipal courts may hear motions for new trial. - In a dispossessory action, a municipal court erred in holding that the court lacked jurisdiction to hear a motion for new trial under O.C.G.A. § 5-5-1. The municipal’s court enacting legislation, 1983 Ga. Laws 4453-4454, § 33, as well as Ga. Const. 1983, Art. VI, Sec. I, Para. IV, gave the court such jurisdiction. Nelson v. Powell, 293 Ga. App. 227, 666 S.E.2d 598 (2008). New trials are granted by superior court as a court, not by a presiding judge in the judge’s capacity as judge.

Page: 263

Date: 06/14/13 Time: 12:24:49

GA RV 13 RV 4(T4-6) - EP

Allen v. State, 102 Ga. 619, 29 S.E. 470 (1897) (decided under former Penal Code 1895, § 1056). New trial may be granted after trial before jury and before appeal. Eufaula Home Ins. Co. v. Plant & Cubbedge, 37 Ga. 672 (1868). Discretion of trial court. - Trial court is vested with discretion in granting new trials. Martin & Sons v. Bank of Leesburg, 137 Ga. 285, 73 S.E. 387 (1911). When trial judge refuses to order new trial on ground of inadequate damages in tort action, this court will interfere with that discretion only in case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Because the defendant did not rebut the presumption that counsel’s conduct was within the broad range of professional conduct, because the trial court considered and rejected counsel’s motion for a mistrial, and because an eyewitness could testify about the certainty of the eyewitness’s identification, the defendant was not entitled to a new trial. Greenwood v. State, 309 Ga. App. 893, 714 S.E.2d 602 (2011). Certiorari lies though court may grant new trial. - Although city court may have power to grant new trials, it is an inferior court whose final judgments may be reviewed by superior court upon certiorari. Archie v. State, 99 Ga. 23, 25 S.E. 612 (1896). First grant of new trial by judge of superior court is never disturbed by appellate court, unless it is made to appear that in doing so the judge manifestly abused the discretion resting in the judge. Law v. Hodges, 53 Ga. App. 319, 185 S.E. 584 (1936). Mere difference of opinion as to amount of recovery. - New trial should not be granted based on mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference, when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Bias, passion, prejudice, or mistake must appear to justify setting aside

verdict. - When amount of verdict, though less than appellate court would have approved, does not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, the appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). Presumption that trial judge knew rule as to obligation to approve jury’s verdict. - In interpreting language of order overruling motion for new trial, appellate court must presume that trial judge knew rule as to obligation to approve jury’s verdict devolving upon the judge, and that in overruling motion the judge did exercise this discretion, unless language of order indicates to the contrary and that court agreed to verdict against the court’s own judgment and against dictates of the judge’s own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E. 236 (1944). Damages rules and new trial rules exist independently. - Rules of law governing (1) right of jury to originally fix damages, (2) right of appellate court to grant new trial when verdict is alleged to be excessive or inadequate, and (3) right of trial judge to grant new trial when in the judge’s discretion the judge thinks the verdict unfair, unjust, contrary to evidence, excessive, or too small, exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E. 236 (1944). Approval of verdict necessary to finalize verdict when party moves for new trial on general grounds. - Before verdict becomes final the verdict should, when losing party requires it by motion for new trial, receive approval of mind and conscience of trial judge. Until the judge’s approval is given, the verdict does not become binding in a case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944). New trial may be granted on condition that plaintiff refuses to agree to reduction in verdict. Bank of

Page: 264

GA RV 13 RV 4(T4-6) - EP

Oglethorpe v. Hicks, 15 Ga. App. 92, 82 S.E. (1914); Carter v. Virginia-Carolina Chem. Co., 144 Ga. 488, 87 S.E. 415 (1915); Biggers v. Mathews, 144 Ga. 857, 88 S.E. 190 (1916). Party may be eliminated by order of appellate court, so judgment is against other defendant. Lovell v. Frankum, 24 Ga. App. 261, 100 S.E. 575 (1919). Motion for new trial cannot be used to withdraw guilty plea. - One who has filed plea of guilty in criminal case cannot move for new trial; neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty. Bearden v. State, 13 Ga. App. 264, 79 S.E. 79 (1913) (decided under former Penal Code 1910, § 1083). Effect of judge’s condemnatory language during sentencing. - Disqualification to render judgment on motion for new trial does not result from the judge’s use of language condemnatory of the accused when imposing sentence. Harrison

Date: 06/14/13 Time: 12:24:49

v. State, 20 Ga. App. 157, 92 S.E. 970 (1917) (decided under former Penal Code 1910, § 1083). Restriction on superior court’s jurisdiction on appeal from probate proceeding. - When appellant filed a motion in probate court to set aside or amend the probate of a will due to newly discovered evidence of a later will, the probate court properly dismissed the petition for lack of jurisdiction when the appellant was not a party to the original probate; on appeal, the jurisdiction of the superior court was limited to that of the probate court. In re Lott, 171 Ga. App. 25, 318 S.E.2d 688 (1984). Cited in Vance v. Gamble, 95 Ga. 730, 22 S.E. 576 (1895); Cowart v. Strickland, 149 Ga. 397, 100 S.E. 447, 7 A.L.R. 1110 (1919); City of Macon v. Herrington, 198 Ga. 576, 32 S.E.2d 517 (1944); Church of God of Union Ass’y, Inc. v. City of Dalton, 216 Ga. 659, 119 S.E.2d 11 (1961); Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994).

OPINIONS OF THE ATTORNEY GENERAL Probate courts do not have the authority to grant new trials. 1986 Op. Att’y Gen. No. U86-13. RESEARCH REFERENCES Am. Jur. 2d. - 58 Am. Jur. 2d, New Trial, § 7 et seq. Am. Jur. Pleading and Practice Forms. - 18B Am. Jur. Pleading and Practice Forms, New Trial, § 1. C.J.S. - 23 C.J.S., Criminal Law, § 1423 et seq. 66 C.J.S., New Trial, § 1 et seq. ALR. - Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 98 ALR 941; 29 ALR2d 1199. Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 ALR2d 852.

Grant of new trial on issue of liability alone, without retrial of issue of damages, 34 ALR2d 988. Delay as affecting right to coram nobis attacking criminal conviction, 62 ALR2d 432. Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 ALR5th 875. Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 ALR5th 1.

Page: 265

GA RV 13 RV 4(T4-6) - EP

Date: 06/14/13 Time: 12:24:49

ARTICLE 2 GROUNDS Cross references. - Requirement that motions for new trial in civil cases be predicated upon intrinsic defect not appearing on face of record or pleadings, § 9-11-60. Those errors in admission or exclusion of evidence which will not constitute grounds for granting new trial, § 9-11-61.

Law reviews. - For articles discussing the preparation of an amended motion for new trial and facts concerning appellate practice in general, prior to the adoption of the Appellate Practice Act, see 21 Ga. B.J. 424 (1959).

JUDICIAL DECISIONS Error and injury are prerequisites. - Before new trial should be granted because of error committed on trial, not only error but injury must be shown. Mills v. State, 41 Ga. App. 834, 155 S.E. 104 (1930). Legal error is a compound of both error and injury. In absence of either constituent element, the grant of new trial is not warranted. Norris v. Sikes, 102 Ga. App. 609, 117 S.E.2d 214 (1960). Ground of motion for new trial must be complete in itself. Blakeney v. Bank of Hahira, 176 Ga. 190, 167 S.E. 114 (1932). Ground of a motion for new trial should be complete within itself, and Supreme Court will not look to other portions of record for purpose of supplementing the record. Gibson v. State, 176 Ga. 384, 168 S.E. 47 (1933). Each special ground of motion for new trial must be complete within itself; and when so incomplete as to require reference to brief of evidence, or to some other portion of record, in order to determine what was alleged error and whether such error was material, ground will not be considered by reviewing court. Bray v. C.I.T. Corp., 51 Ga. App. 196, 179 S.E. 925 (1935). Ground of a motion for new trial should be complete within itself, and should not require resort to brief of evidence for a clear understanding of error it is claimed was committed. Johnson v. Phoenix Mut. Life Ins. Co., 180 Ga. 422, 179 S.E. 95 (1935). Extraordinary motions for new trial are not favored. Smith v. State, 171 Ga. 402, 155 S.E. 676 (1930).

Grounds of motion for new trial not approved as true without qualification cannot be considered. Gay v. State, 173 Ga. 793, 161 S.E. 603 (1931). When jury charge is based on unconstitutional statute. - Constitutionality of statute cannot be raised for first time in motion for new trial, but when the charge is given to the jury based upon statute which is unconstitutional, and counsel could not know nor anticipate that substance of statute would be given in charge to jury, counsel were not bound to raise question of constitutionality of statute before charge was given, and could assign error upon charge in motion for new trial. Wadley S. Ry. v. Faglee, 173 Ga. 814, 161 S.E. 847 (1931). Judge cannot modify verdict after verdict’s receipt and jury’s disbursement. - If judge is not satisfied that verdict is returned is proper, before receiving verdict the judge may require the jury to return to room and correct the jury’s verdict, under proper instructions from court or, after verdict is received and recorded and jury dispersed, the judge may grant a new trial. But the judge is without power to change and modify verdict after the verdict is received and recorded, and jury has dispersed. Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978). Considered first grant when granted to party not previously awarded new trial. - Rule that first grant of new trial will not be disturbed, except when verdict is demanded by evidence, is applicable to case where two successive verdicts have been rendered, one for plaintiff and the other for defen-

Page: 266

GA RV 13 RV 4(T4-6) - EP

dant, and when in each instance a new trial was granted. Schiefer v. Durden, 56 Ga. App. 167, 192 S.E. 388 (1937).

Date: 06/14/13 Time: 12:24:49

Cited in Cook v. Attapulgus Clay Co., 52 Ga. App. 610, 184 S.E. 334 (1936).

RESEARCH REFERENCES ALR. - Abuse of witness by counsel as ground for new trial or reversal, 4 ALR 414. Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 ALR 779, 95 ALR 1163. Power of trial court to dismiss defendant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 ALR 187. Manifestation of emotion by party during civil trial as ground for mistrial, reversal, or new trial, 69 ALR2d 954. Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 ALR3d 1236. Verdict-urging instructions in civil case admonishing jurors to refrain from intransigence, or reflecting on integrity or intelligence of jurors, 41 ALR3d 1154. Recantation by prosecuting witness in

sex crime as ground for new trial, 51 ALR3d 907. Propriety of, or prejudicial effect of omitting or giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 ALR3d 866. Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 ALR3d 1174. Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial, 50 ALR4th 995. Court reporter’s death or disability prior to transcribing notes as grounds for reversal or new trial, 57 ALR4th 1049. Prosecutor’s appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 ALR4th 664.