Hearing on motion required.

- Under O.C.G.A. §§ 5-5-40 and 5-5-41, the trial court is required to hold a hearing on a motion for new trial. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

After the juvenile court found that there was not probable cause to believe the child was dependent, the juvenile court erred in not conducting a hearing on the motion for new trial because the child's motion attacked the juvenile court's evidentiary findings, which was a proper claim of error in such a motion; furthermore, the child requested a hearing on the motion for new trial, and there was nothing in the record suggesting the child later waived the right to that hearing. In the Interest of M. I., 344 Ga. App. 172, 809 S.E.2d 540 (2017).

Distinguished from motion for mistrial.

- Trial court's grant of a defendant's motion for a mistrial over two months after a guilty verdict had been returned was void as a mistrial could not be entered after the verdict was returned; motions for mistrial were not to be confused with motions for a new trial, which were appropriate after the verdict was returned, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, provided for double jeopardy protection except when a new trial had been granted after the conviction or in the case of a mistrial. State v. Sumlin, 281 Ga. 183, 637 S.E.2d 36 (2006).

Date for hearing on motion for new trial.

- When the date for the hearing on a motion for new trial is left blank, the time of the hearing is "indefinite" and the hearing may be heard at any succeeding term. Whitton v. State, 174 Ga. App. 634, 331 S.E.2d 10 (1985).

No law requires that motion for new trial be set down for a hearing. McClure v. State, 163 Ga. App. 236, 293 S.E.2d 496 (1982).

There is no law that a motion cannot be summarily heard instanter. McClure v. State, 163 Ga. App. 236, 293 S.E.2d 496 (1982).

Trial court did not err in hearing motion for new trial immediately after the motion was filed and prior to preparation of transcript and proceedings since the evidence at trial was fresh in the court's memory at that particular point in time. McClure v. State, 163 Ga. App. 236, 293 S.E.2d 496 (1982).

No hearing as to extraordinary motion showing no merit.

- Extraordinary motion for new trial which fails to show any merit may be denied without the necessity of a hearing. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Summary denial when movant fails to follow procedure.

- Due process and equal protection rights are not violated by a trial court's summary denial of a movant's extraordinary motion for new trial when the movant fails to comply with the procedural requirements of state law. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Continuance properly denied.

- When defense counsel had approximately four months to prepare for the hearing on the defendant's motion for new trial and during this time, counsel had access to the entire trial transcript and all matters of record filed with the superior court clerk's office, even though the defendant's counsel may not have had access to the transcripts of the pre-trial hearings, counsel did have ample time to consult with counsel's client, study the evidence presented at trial, and review all of defendant's written pre-trial motions, so the trial court did not abuse the court's discretion in denying the defendant's motion to continue. Isbell v. State, 179 Ga. App. 363, 346 S.E.2d 857 (1986), cert. denied, 479 U.S. 1098, 107 S. Ct. 1319, 94 L. Ed. 2d 172 (1987).

Tolling.

- Time period for filing a notice of appeal is not tolled by an untimely motion for new trial. Dodson v. State, 292 Ga. 790, 741 S.E.2d 639 (2013).

Cited in Mobley v. State, 221 Ga. 716, 146 S.E.2d 735 (1966); Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966); Cloer v. Vulcan Elec. Co., 113 Ga. App. 766, 149 S.E.2d 722 (1966); White Oak Acres, Inc. v. Campbell, 113 Ga. App. 833, 149 S.E.2d 870 (1966); Wright v. Wright, 222 Ga. 777, 152 S.E.2d 363 (1966); McRae v. State, 116 Ga. App. 407, 157 S.E.2d 646 (1967); A.M. Kidder & Co. v. Clement A. Evans & Co., 117 Ga. App. 346, 160 S.E.2d 869 (1968); Gibson Prods. Co. v. Addison, 120 Ga. App. 37, 169 S.E.2d 374 (1969); Whiteway Laundry & Dry Cleaners, Inc. v. Childs, 126 Ga. App. 617, 191 S.E.2d 454 (1972); Berman v. Berman, 231 Ga. 216, 200 S.E.2d 870 (1973); Lenny v. Lenny, 235 Ga. 358, 220 S.E.2d 1 (1975); Barfield v. McEntyre, 136 Ga. App. 294, 221 S.E.2d 58 (1975); Peyton v. Peyton, 236 Ga. 119, 223 S.E.2d 96 (1976); Adair v. Adair, 236 Ga. 443, 224 S.E.2d 21 (1976); Davis v. Davis, 139 Ga. App. 599, 229 S.E.2d 81 (1976); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106, 230 S.E.2d 34 (1976); Venable v. Block, 141 Ga. App. 523, 233 S.E.2d 878 (1977); Williams v. State, 144 Ga. App. 42, 240 S.E.2d 311 (1977); Martin v. State, 240 Ga. 488, 241 S.E.2d 246 (1978); Shoemaker v. Department of Transp., 240 Ga. 573, 241 S.E.2d 820 (1978); Stone v. State, 144 Ga. App. 843, 242 S.E.2d 749 (1978); Norman v. Allen, 148 Ga. App. 66, 251 S.E.2d 20 (1978); Mayo v. State, 148 Ga. App. 213, 251 S.E.2d 80 (1978); Parker v. State, 151 Ga. App. 139, 259 S.E.2d 145 (1979); Baxter v. Weiner, 246 Ga. 28, 268 S.E.2d 619 (1980); Bennett v. Caton, 154 Ga. App. 515, 268 S.E.2d 786 (1980); Randall & Blakely, Inc. v. Krantz, 155 Ga. App. 238, 270 S.E.2d 265 (1980); Herring v. Herring, 246 Ga. 462, 271 S.E.2d 857 (1980); Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 276 S.E.2d 248 (1980); Grant v. State, 159 Ga. App. 2, 282 S.E.2d 668 (1981); Gates Rental, Inc. v. Perry, 164 Ga. App. 297, 297 S.E.2d 79 (1982); Hack v. State, 168 Ga. App. 927, 311 S.E.2d 211 (1983); Levitt v. State, 170 Ga. App. 32, 316 S.E.2d 6 (1984); Batson v. First Nat'l Bank, 170 Ga. App. 803, 318 S.E.2d 227 (1984); Neese v. Long, 178 Ga. App. 105, 341 S.E.2d 861 (1986); Appling v. State, 256 Ga. 36, 343 S.E.2d 684 (1986); Williams v. State, 178 Ga. App. 581, 344 S.E.2d 247 (1986); Gaskins v. State, 181 Ga. App. 849, 354 S.E.2d 27 (1987); Williamson v. State, 182 Ga. App. 49, 354 S.E.2d 868 (1987); Cunningham v. State, 182 Ga. App. 266, 355 S.E.2d 762 (1987); Louis v. State, 185 Ga. App. 472, 364 S.E.2d 607 (1988); Shirley v. State, 188 Ga. App. 357, 373 S.E.2d 257 (1988); Lane v. Taylor, 193 Ga. App. 777, 389 S.E.2d 26 (1989); United States Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 195 Ga. App. 14, 392 S.E.2d 574 (1990); O'Kelly v. State, 196 Ga. App. 860, 397 S.E.2d 197 (1990); Walker v. State, 197 Ga. App. 265, 398 S.E.2d 217 (1990); Riggins v. State, 197 Ga. App. 612, 399 S.E.2d 96 (1990); Burke v. State, 201 Ga. App. 50, 410 S.E.2d 164 (1991); Trinity v. Applebee's Neighborhood Grill & Bar, 201 Ga. App. 404, 411 S.E.2d 131 (1991); Bean v. Landers, 215 Ga. App. 366, 450 S.E.2d 699 (1994); Andrews v. Rentz, 266 Ga. 782, 470 S.E.2d 669 (1996); Eisele v. State, 238 Ga. App. 289, 519 S.E.2d 9 (1999); Thomas v. Wiley, 240 Ga. App. 135, 522 S.E.2d 714 (1999); Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003); Merritt v. State, 288 Ga. App. 89, 653 S.E.2d 368 (2007); State v. Jones, 284 Ga. 302, 667 S.E.2d 76 (2008); Holloway v. State, 342 Ga. App. 462, 804 S.E.2d 125 (2017).

Transcript not required when alleged error stems from pleadings.

- When error relied upon in motion for new trial is one that appears from pleadings no transcript or brief of evidence is required. Hill v. General Rediscount Corp., 116 Ga. App. 459, 157 S.E.2d 888 (1967).

Where evidence is familiar, court may hear motion without transcript.

- In court's discretion, if court is familiar with evidence, motion may be heard and if proper granted, although transcript is not physically available at time. Castile v. Rich's, Inc., 131 Ga. App. 586, 206 S.E.2d 851 (1974).

No brief is required in connection with motion to set judgment aside since that goes to defects not amendable which appear on face of record or pleadings. Hill v. General Rediscount Corp., 116 Ga. App. 459, 157 S.E.2d 888 (1967).

Within discretion of trial judge to set time for filing of transcript of evidence. There is nothing in the statute to indicate that the judge must state the judge's reasons for granting whatever length of time the judge determines is necessary for filing of transcript. The judge knows the volume of litigation in his court, and must be assumed to know whether court reporter is promptly and efficiently discharging his or her duties. Diamond v. Liberty Nat'l Bank & Trust Co., 228 Ga. 533, 186 S.E.2d 741 (1972).

Movant's failure to make reasonable effort to secure transcript.

- When it appears that transcript of evidence, or lawful substitute therefor is essential to consideration of grounds of motion for judgment n.o.v. or for new trial and neither was produced at time of hearing on motion, and judge found as a fact that movants had not made a reasonable effort to secure it, proper direction to give matter is to dismiss motion. Miller v. Sparks, 124 Ga. App. 4, 183 S.E.2d 88 (1971).

When the defendants' motion for a new trial was dismissed not because the court reporter took longer than planned to prepare the transcript, but because the defendants failed to either seek and obtain an extension of time for filing the transcript or ensure the transcript was filed there was no abuse of discretion by the court. Myers v. Myers, 195 Ga. App. 529, 394 S.E.2d 374 (1990).

Trial court has discretion to set the time for filing of the transcript of the evidence, and dismissal of a motion for new trial is appropriate when the transcript is necessary to consideration of the motion, and the movant has made no reasonable effort to secure it. Moore v. Sinclair, 196 Ga. App. 667, 396 S.E.2d 557 (1990).

Because the defendant failed to obtain a transcript of the trial proceedings within a reasonable time, the trial court properly dismissed the defendant's motion for a new trial without holding a hearing pursuant to O.C.G.A. § 5-5-40, as the defendant failed to offer a justification or excuse for the delay in securing the transcript; defendant had filed the motion and was initially granted a continuance by the trial court in order to allow the defendant to pay the court reporter for the transcript, but the defendant failed to secure the transcript one and one-half months later, whereupon the state filed the state's dismissal motion. Menefee v. State, 271 Ga. App. 364, 609 S.E.2d 714 (2005).

Duty upon court reporter not upon litigant.

- There is no duty on litigant to take recordings of evidence from reporter and have the recordings transcribed by typists employed by the litigant. In fact, such practice cannot be allowed. Reporter has a duty to give a correct report of proceedings on trial, and must certify to correctness of such transcript under Ga. L. 1965, p. 18, § 10 (see O.C.G.A. § 5-6-41(e)). Diamond v. Liberty Nat'l Bank & Trust Co., 228 Ga. 533, 186 S.E.2d 741 (1972).

Place of filing.

- When paper is required to be filed, without more, this means filing in clerk's office. Dukes v. Ralston Purina Co., 127 Ga. App. 696, 194 S.E.2d 630 (1972).

Merely sending motion to judge does not constitute making application within meaning of section. Smith v. Forrester, 145 Ga. App. 281, 243 S.E.2d 575, cert. denied, 439 U.S. 863, 99 S. Ct. 185, 58 L. Ed. 2d 172 (1978).

Although there is a right to a hearing on a motion for new trial upon a timely request, the court is not required to hold a hearing on a motion for new trial which fails to show any merit and which is made more than 30 days after the entry of judgment. Wright v. Barnes, 240 Ga. App. 684, 524 S.E.2d 758 (1999).

Strict pleading is required in extraordinary motions for new trial in order to postpone indefinitely the execution of the sentence and allow the judge to whom it is presented to ascertain readily if a new trial is warranted based on newly discovered evidence. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Failure to state facts sufficient for grant of motion.

- When the pleadings in an extraordinary motion for new trial in a criminal case do not contain a statement of facts sufficient to authorize that the motion be granted, if the facts developed at the hearing warrant such relief, it is not error for the trial court to refuse to conduct a hearing on the extraordinary motion. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Delay in ruling on motion.

- Trial court did not err in not vacating defendant's sentence merely because approximately two years passed between the jury verdict and the time the trial court overruled defendant's motion for new trial. Lowry v. State, 171 Ga. App. 118, 318 S.E.2d 744 (1984).

Court's own motion.

- Trial court's order for a new trial made within 30 days of the entry of a judgment is valid under subsection (h) of O.C.G.A. § 5-5-40 notwithstanding a reference to a prematurely filed motion for a new trial made by one of the parties. Central of Ga. R.R. v. Hearn, 188 Ga. App. 277, 372 S.E.2d 834 (1988).

Post notice of appeal.

- Trial court may, on the court's own motion, grant a new trial as provided in subsection (h) of O.C.G.A. § 5-5-40 within the time in which a motion for new trial may be filed even though a notice of appeal has been filed. Griffin v. Loper, 209 Ga. App. 504, 433 S.E.2d 653 (1993).

Concurrent pendency of appeal and new trial motion.

- When party who filed appeal subsequently makes a motion for a new trial, pendency of new trial motion does not divest appellate court of jurisdiction to hear appeal. Atkinson v. State, 170 Ga. App. 260, 316 S.E.2d 592 (1984).

Notice of appeal divests the trial court of jurisdiction to hear motions for new trial or to grant a new trial on the court's own motion after the period in which a motion for new trial may be filed in accordance with O.C.G.A. § 5-5-40. Elrod v. State, 222 Ga. App. 704, 475 S.E.2d 710 (1996).

Filing requirement waived.

- Although no motion for new trial was filed, the lack of any opportunity for a hearing before the trial court required remanding the case for an evidentiary hearing on the issue of the asserted ineffectiveness of defendant's trial counsel. Brady v. State, 207 Ga. App. 451, 428 S.E.2d 373 (1993).

Motion for new trial is indispensable means for testing sufficiency of evidence.

- When case has been tried by jury and verdict rendered therein, and losing party desires to test sufficiency of evidence to support verdict, motion for new trial is indispensable. Nuckolls v. Jordan, 49 Ga. App. 79, 174 S.E. 250 (1934) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

New trial is peculiar and appropriate remedy when losing party desires reexamination of facts. Durrence v. Cowart, 160 Ga. 671, 129 S.E. 26 (1925) (decided under former Civil Code 1910, § 6089).

Former Code 1873, § 3719 (see O.C.G.A. § 5-5-40) deals with ordinary motions only, leaving others to be treated under former Code 1873, § 6092 (see O.C.G.A. § 5-5-41). Brinkley v. Buchanan, 55 Ga. 342 (1875) (decided under former Code 1873, § 3719).

Word "made" as used in section is synonymous with "filed." Hilt v. Young, 116 Ga. 708, 43 S.E. 76 (1902) (decided under former Civil Code 1895, § 5484); Peavy v. Peavy, 167 Ga. 219, 145 S.E. 55 (1928) (decided under former Civil Code 1910, § 6089).

Certain motions to set aside judgment are treated as motions for new trial.

- Motions to set aside judgment based on matters not appearing on face of record are governed by same rules of practice as motions for new trials. Perry v. Maryland Cas. Co., 102 Ga. App. 475, 116 S.E.2d 620 (1960) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Motion for new trial must be filed with clerk of trial court. Hilt v. Young, 116 Ga. 708, 43 S.E. 76 (1902) (decided under former Civil Code 1895, § 5484).

Leaving motion in office of judge, under care of special bailiff, does not constitute filing. New England Mtg. Sec. Co. v. Collins, 115 Ga. 104, 41 S.E. 270 (1902) (decided under former Civil Code 1895, § 5484).

Special ground in motion for new trial must be complete within itself.

- Grounds of motions for new trial not sufficiently complete within themselves, will not be passed upon. Gibson v. State, 77 Ga. App. 292, 48 S.E.2d 309 (1948) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Special grounds of motion for new trial must be complete and understandable within themselves without necessity of reference to other special grounds of motion, brief of evidence, or other parts of record to understand them. Stanley v. Chitwood, 87 Ga. App. 38, 73 S.E.2d 40 (1952) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16); Fillingham v. Campbell, 87 Ga. App. 481, 74 S.E.2d 392 (1953); Hartsfield v. Hartsfield, 87 Ga. App. 707, 75 S.E.2d 276 (1953) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Ground of motion requiring reference to other grounds or portions of record.

- Ground of motion for new trial which requires reference to other grounds of motion or to portions of record for understanding thereof or to enable court to ascertain whether error alleged was in fact error is too incomplete to be considered. Sutton v. Allen, 87 Ga. App. 25, 72 S.E.2d 921 (1952) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Special grounds of amended motion for new trial which are incomplete within themselves, in that they require reference to record, fail to set up substance of testimony and documentary evidence objected to or fact of timely objection and grounds of objection urged, will not be passed upon by Court of Appeals. Allison v. State, 84 Ga. App. 77, 65 S.E.2d 642 (1951) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Reference in one special ground to brief of evidence for facts necessary to understand errors assigned is not permitted, and ground not complete and understandable within itself will not be passed upon by Court of Appeals. Robertson v. Robertson, 90 Ga. App. 576, 83 S.E.2d 619 (1954) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

When nonparty files motion in own name, name of real party cannot thereafter be substituted.

- When one not party to case files a motion for a new trial in that party's own name, a motion cannot thereafter be amended so as to substitute the name of the real party to the case as the movant. Athens Truck & Tractor Co. v. Kennedy, 91 Ga. App. 49, 84 S.E.2d 608 (1954) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

Suits tried together, with different verdicts rendered.

- In suit between different parties tried together wherein different verdicts and judgments were entered, it is not proper for single motion for new trial to be filed in name of both plaintiffs. Allen v. Woods, 44 Ga. App. 430, 161 S.E. 655 (1931) (decided under former Civil Code 1910, § 6089).

Second motion not authorized when first motion complaining of same verdict is pending.

- When motion for new trial is pending in superior court, there is no provision of law authorizing the movant to file a second separate original motion for new trial complaining of the same verdict. Perry v. Harper, 190 Ga. 235, 9 S.E.2d 162 (1940) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16).

When motion for new trial permitted notwithstanding verdict has not been received or recorded.

- Accused having procured decision that verdict which trial judge refused to receive was valid verdict and final determination of case, effect was that motion for new trial could have been filed, notwithstanding verdict had not been received and recorded. It was not error to refuse to entertain motion for new trial made a year after rendition of verdict. Register v. State, 12 Ga. App. 688, 78 S.E. 142 (1913) (decided under former Penal Code 1910, § 6089).

From entry of sentence upon convicted defendant.

- When trial court entered an order on August 29, 1985, the day the jury returned the jury's verdicts, in which order the court "considered, ordered, and adjudged that the defendant is guilty," but sentence was entered on October 21, 1985, and the defendant filed a motion for new trial ten days later, it was held that the entry of sentence upon a convicted defendant is necessary for a final judgment, from which an appeal may be taken, to be entered, and inasmuch as the defendant's motion for new trial was filed within 30 days after the defendant's sentence was entered, it was timely and extended the time within which the defendant had to file the defendant's appeal to the Court of Appeals. Howard v. State, 182 Ga. App. 403, 355 S.E.2d 772 (1987).

When a trial court issued a child support order on February 14, 2012, and the father filed a motion for relief on February 28, 2012, the father's motion (although incorrectly styled a motion for JNOV) was timely as a new trial motion under O.C.G.A. § 5-5-40; the motion was also timely because, in DeKalb County, the January term of court ran from the first Monday in January until the first Monday in March, pursuant to O.C.G.A. § 15-6-3(37). Wheeler v. Akins, 327 Ga. App. 830, 761 S.E.2d 383 (2014).

Burden is upon party desiring to take appeal to timely file motion.

- Burden is upon party desiring to take appeal to file the party's motion for new trial or notice of appeal within the required 30-day period; a party does not satisfy this burden by receiving assurances of the clerk or by conferring with the clerk as to the speed of postal delivery. H.R. Lee Inv. Corp. v. Groover, 138 Ga. App. 231, 225 S.E.2d 742 (1976).

Good reason must be shown for failure to file motion within prescribed time.

- In any case when motion for new trial is made more than 30 days after entry of judgment on verdict, some good reason must be shown why motion was not made within time allowed by law. Brawner v. Wilkins, 114 Ga. App. 263, 150 S.E.2d 721 (1966).

Date of entry of filing by clerk is presumed correct until rebutted.

- Entry of filing by clerk is best evidence of date of filing and is presumed to be correct until contrary is shown. This presumption may be rebutted, however, by proof of delivery for filing to clerk on different day. H.R. Lee Inv. Corp. v. Groover, 138 Ga. App. 231, 225 S.E.2d 742 (1976).

Filing after time prescribed does not toll time for filing notice of appeal.

- When purported motion for new trial was not filed within 30 days as required by former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40), it was void and of no effect, and therefore did not toll time for filing notice of appeal under Ga. L. 1968, p. 1072, § 7 (see O.C.G.A. § 5-6-38). Johnson v. State, 227 Ga. 219, 180 S.E.2d 94 (1971).

Untimely motion for new trial is void and does not operate to toll the time for filing of the notice of appeal. Wright v. Rhodes, 198 Ga. App. 269, 401 S.E.2d 35 (1990).

Motion for new trial that was not filed within 30 days as required by O.C.G.A. § 5-5-40 was void, had no effect and did not toll the time for filing a notice of appeal under O.C.G.A. § 5-6-38. Peters v. State, 237 Ga. App. 625, 516 S.E.2d 331 (1999).

Defendant's motion for new trial filed more than 30 days after the entry of judgment was untimely under O.C.G.A. § 5-5-40(a), void, and did not toll the 30-day time to file a notice of appeal provided by O.C.G.A. § 5-6-38(a). Because the defendant failed to show good cause for the untimely motion, it could not be construed as an extraordinary motion under O.C.G.A. § 5-5-41(b), and even if it were so construed, the defendant did not follow the discretionary appeal procedure of O.C.G.A. § 5-6-35. Davis v. State, 330 Ga. App. 711, 769 S.E.2d 133 (2015).

Invitation by court, before verdict returned, to file motion.

- When, at the close of the defendant's evidence, the court volunteered that in the court's opinion there was a fatal variance between the allegata and probata on the criminal trespass charge and that if the jury returned a verdict of guilty, the court would either "set that judgment aside" or "grant a motion for new trial instantly" if defendant requested one on that basis and, immediately following return of the verdicts, the court stated that it was granting "a new trial" on the criminal trespass charge, the court effectively acquitted the defendant. Even if the order had been a proper grant of a new trial, it would not have been appealable by the state, as it was not encompassed in O.C.G.A. § 5-7-1. State v. Seignious, 197 Ga. App. 766, 399 S.E.2d 559 (1990).

Motion for new trial filed before judgment is entered, is premature and invalid. Fact that the trial judge announced orally that the judge would grant the motion for new trial is no judgment. Moore v. Moore, 229 Ga. 600, 193 S.E.2d 608 (1972).

Motion for new trial made before judgment is entered is premature and not timely filed. Deroller v. Powell, 144 Ga. App. 585, 241 S.E.2d 469 (1978).

Prematurely filed motion becomes fully effective upon entry of judgment.

- Division 2 of Harrison v. Harrison, 229 Ga. 692, 194 S.E.2d 87 (1972), and its progeny are overruled. Now, a prematurely filed motion for new trial that sufficiently identifies the judgment involved becomes fully effective upon entry of that judgment, enabling the trial court - and ultimately the appellate court pursuant to a properly filed notice of appeal - to review all of the issues raised in the motion on their merits; as a result, the supreme court addressed the defendant's enumeration premised on and directed only to the denial of the defendant's premature motion for new trial. Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017).

Motion for new trial filed prior to entry of judgment is void. Joiner v. Perkerson, 160 Ga. App. 343, 287 S.E.2d 327 (1981), overruled on other grounds by Southall v. State, 2017 Ga. LEXIS 33 (Ga. 2017).

After appeal.

- When motion for new trial was filed after case was on appeal, any attempted action by trial court was a nullity. Jinks v. State, 163 Ga. App. 841, 296 S.E.2d 624 (1982).

Lower court may not grant new trial after appellate review.

- When judgment was entered for the plaintiff, who then filed a notice of appeal, and the defendant then filed a cross appeal as well as a motion for new trial in the trial court, and the Court of Appeals then affirmed the trial court's judgment, the trial court could not reassert the court's jurisdiction and grant a new trial to the defendant. Housing Auth. v. Van Geeter, 252 Ga. 196, 312 S.E.2d 309 (1984).

After the Court of Appeals affirmed a lower court verdict and reversed the grant of a new trial by that court, a subsequent granting of a new trial by the lower court was error. Sharif v. Tidwell Homes, Inc., 252 Ga. 205, 312 S.E.2d 114 (1984).

Extending time to file notice of appeal.

- Timely notice of appeal must be filed after obtaining a proper written order from the trial court, however, the trial court cannot enter an order purporting to extend the time to file until a notice of appeal has been filed. Watson v. State, 202 Ga. App. 667, 415 S.E.2d 306 (1992).

Motion for new trial may be made on same day as rendition of verdict. Durrence v. Cowart, 160 Ga. 671, 129 S.E. 26 (1925) (decided under former Civil Code 1910, § 6089).

Good reason must be shown to justify filing motion after time prescribed.

- Motion for new trial made after time permitted by section may not be entertained unless some good reason be shown why motion was not made within time required, which reason shall be judged on by court. Union Life Ins. Co. v. Aaronson, 109 Ga. App. 384, 136 S.E.2d 142 (1964) (decided under former Code 1933, § 70-301, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 16.)

Motion for new trial alleging ineffective assistance of trial counsel was raised at earliest practicable moment and not procedurally barred.

- Because defendant's trial counsel filed a motion for new trial after the jury verdict was rendered, which motion was denied, and thereafter, appellate counsel was appointed for defendant and a notice of appeal was filed which raised the claim of ineffective assistance of trial counsel, that issue was not procedurally barred, as appellate counsel raised the issue at the earliest practicable moment; a second new trial motion was not required once appellate counsel was appointed, and the ruling had been made on the first motion for new trial prior to appellate counsel having been appointed, pursuant to O.C.G.A. § 5-5-40(b). Haggard v. State, 273 Ga. App. 295, 614 S.E.2d 903 (2005).

Defendant procedurally barred from raising ineffective assistance of counsel claim.

- In a criminal case, because appellate counsel was appointed prior to the filing of the notice of appeal, the defendant was procedurally barred from raising for the first time on appeal the issue of ineffectiveness of counsel as neither trial counsel nor appellate counsel moved for a new trial asserting ineffective assistance of trial counsel, which motion was available when appellate counsel filed the notice of appeal. Cooper v. State, 287 Ga. App. 901, 652 S.E.2d 909 (2007).

Defendant not barred from raising ineffective assistance of counsel claim.

- Postconviction court erred in denying the defendant's motion for a new trial without affording the defendant the opportunity to present evidence to support the defendant's ineffective assistance claim because the defendant had the right to representation by conflict-free counsel through which to raise claims of ineffective assistance of trial counsel in a motion for new trial and because the defendant could amend a motion for a new trial at any time before ruling thereon pursuant to O.C.G.A. § 5-5-40(b). Because the defendant raised the defendant's ineffective assistance claim through conflict-free counsel when counsel filed the amendment to the defendant's motion for a new trial, the defendant was entitled to a hearing on the merits on that claim. Lee v. State, 308 Ga. App. 711, 708 S.E.2d 633 (2011).

One failing to file motion in time cannot become party to motion filed by another. Hill v. O'Bryan Bros., 104 Ga. 137, 30 S.E. 996 (1898) (decided under former Civil Code 1895 § 5484).

Motion must be disposed of to extend time for filing notice of appeal.

- Because the plaintiff filed a second application for discretionary appeal on June 28, 2010, after withdrawing the plaintiff's motion for new trial, the motion was untimely as the motion was filed 61 days after the entry of the judgment on April 28; pursuant to O.C.G.A. § 5-6-38, the trial court had to dispose of the motion for new trial to extend the time for filing a notice of appeal. Cooper v. Spotts, 309 Ga. App. 361, 710 S.E.2d 159 (2011).

Amendments to motion must be filed before court's ruling thereon.

- Statute clearly requires that amendments to motion for new trial must be filed prior to court's ruling thereon. Arnold v. DeKalb County, 141 Ga. App. 315, 233 S.E.2d 273 (1977).

Nunc pro tunc entry cannot be used to correct failure to make timely amendment. Arnold v. DeKalb County, 141 Ga. App. 315, 233 S.E.2d 273 (1977).

Party cannot amend motion after 30 days to move for judgment n.o.v.

- When party after suffering an adverse judgment filed only a motion for new trial within 30-day period specified in O.C.G.A. § 9-11-50, then after the 30-day period expired party sought to file, in the form of an amendment to the new trial motion, a motion for judgment notwithstanding the verdict, the latter motion must be considered invalid. Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 329 S.E.2d 900, cert. denied, 254 Ga. 349, 331 S.E.2d 879 (1985).

Amendment not allowed.

- Motion for new trial may be amended any time before the ruling thereon; since appellate counsel had over four months to raise an ineffective assistance of trial counsel claim in an amended motion for new trial or in the hearing, but failed to do so, an appellate court declined to consider that claim raised for the first time on appeal. Swint v. State, 279 Ga. App. 777, 632 S.E.2d 712 (2006).

Qualification of jurors.

- Trial court did not abuse its discretion in granting plaintiffs' extraordinary motion for new trial based on an auto company's misleading discovery responses with regard to liability insurance because they acted with due diligence to raise their claim that the jury should have been qualified as to the auto company's insurers and the failure to do so raised an unrebutted presumption that they were materially harmed. Ford Motor Co. v. Conley, 294 Ga. 530, 757 S.E.2d 20 (2014).

Statute applies when verdict and judgment based on testimony of witness subsequently found guilty of perjury. Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 175 S.E.2d 65 (1970).

Motion improper after guilty plea.

- In addition to being improper following the entry of a guilty plea to child molestation, a defendant's motion for new trial was untimely, having been filed more than a year after entry of judgment, O.C.G.A. § 5-5-40(a), and was therefore void and of no effect. Roseborough v. State, 311 Ga. App. 456, 716 S.E.2d 530 (2011).

Extraordinary motion for new trial still available remedy after dismissal.

- After order of dismissal under Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(b)) extraordinary motions for new trial are still available procedures under former Code 1933, § 70-301 (see O.C.G.A. § 5-5-40) and Ga. L. 1974, p. 1138, § 1 (see O.C.G.A. § 9-11-60(c), (f)). Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975).

Motion for new trial is inappropriate vehicle to obtain re-examination of grant of summary judgment and a motion so filed has no validity and will not extend filing date of notice of appeal. Shine v. Sportservice Corp., 140 Ga. App. 355, 231 S.E.2d 130 (1976).

Motion for new trial is not the proper vehicle to obtain a reexamination of the legal conclusions solely involved in a grant of summary judgment. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981).

Motion no longer prerequisite for trial court to set aside verdict and grant new trial. Florida E. Coast Properties, Inc. v. Davis, 133 Ga. App. 932, 213 S.E.2d 79 (1975).

Trial judge may grant new trial on own motion within prescribed time.

- Trial judge is empowered on the judge's own volition to correct any error subsequently recognized as to rulings during trial as well as to exercise the judge's discretion as to the weight of evidence and grant a new trial on the judge's own motion within 30 days from entry of judgment. Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 226 S.E.2d 791 (1976).

Court granting own motion, on unspecified grounds, after time prescribed.

- Court may not grant new trial on unspecified ground on the court's own motion after more than 30 days from entry of judgment and after the term had expired. Darby v. Commercial Bank, 135 Ga. App. 462, 218 S.E.2d 252 (1975), overruled on other grounds, Smith v. Telecable of Columbus, Inc., 140 Ga. App. 755, 232 S.E.2d 100 (1976).

Defendant must raise all issues on first and only appeal, for judgment on that appeal is conclusive of all issues raised or which could have been raised. Akins v. State, 237 Ga. 826, 229 S.E.2d 645 (1976).

Judge who cannot recollect evidence sufficiently to settle matter, shall enter order so stating. Hill v. General Rediscount Corp., 116 Ga. App. 459, 157 S.E.2d 888 (1967).

Error to grant new trial when not elicited.

- When no reading of the defendant's motion could suggest an attempt by the defendant to elicit such an order, it was error for the trial court to grant a new trial to the plaintiff, especially when such an order could only benefit the plaintiff and work to the detriment of the defendant. Nelson & Budd, Inc. v. Brunson, 173 Ga. App. 856, 328 S.E.2d 746 (1985).

New trial motion proper means of attacking nominal damage award.

- Award of $130,000.00 nominal damages, if palpably unreasonable, excessive, or the product of bias, may be set aside, but these are not the criteria for a directed verdict or judgment n.o.v.; the motion for a new trial is the proper means of attack. Miller & Meier & Assocs. v. Diedrich, 174 Ga. App. 249, 329 S.E.2d 918, aff'd in part, rev'd in part, 254 Ga. 734, 334 S.E.2d 308 (1985).

Requirements for motion based on newly discovered evidence.

- Movant's extraordinary motion for a new trial based on recently discovered evidence must satisfy the court: (1) that newly discovered evidence has come to the movant's attention since the movant's trial; (2) that want of due diligence was not the reason that the movant's evidence was not acquired sooner; (3) that the evidence was so material that it would produce probably a different verdict; (4) that the evidence was not cumulative only; (5) that the affidavit of the witness is attached to the motion or the affidavit's absence is sufficiently explained; and (6) that the new evidence does not operate solely to impeach the credit of a witness. The motion must set forth facts to meet these requirements; conclusions of counsel will not suffice. Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982).

Claim of innocence in habeas petition was not a constitutional claim.

- Petitioner, a death row inmate, argued in a federal habeas petition as a separate claim for relief that the petitioner was actually innocent, but that claim failed because actual innocence was not itself a constitutional claim, and was instead a gateway through which a habeas petitioner had to pass to have the petitioner's otherwise barred constitutional claim considered on the merits; further, the claim was not properly before the federal court as the inmate could pursue a claim of actual innocence in state court by filing an extraordinary motion for new trial under O.C.G.A. §§ 5-5-23,5-5-40, and5-5-41. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).

Failure to raise issues in criminal matter waived issues.

- Defendant was not entitled to a new trial under O.C.G.A. § 5-5-40 on three kidnapping convictions on the basis that the defendant received ineffective assistance of counsel because while ineffective assistance was found on the basis that trial counsel failed to cross-examine the defendant's former girlfriend adequately, failed to argue cogently on behalf of a directed verdict motion on the kidnapping charges, and presented only a perfunctory closing argument, the defendant waived those issues as the defendant did not claim that trial counsel was ineffective on those particular grounds in the defendant's motion for new trial. State v. Jones, 284 Ga. 302, 667 S.E.2d 76 (2008).

As the defendant failed to assert in a new trial motion under O.C.G.A. § 5-5-40(a) that trial counsel was ineffective for various reasons, the defendant was thereafter procedurally barred from raising that issue on appeal. Hornsby v. State, 296 Ga. App. 483, 675 S.E.2d 502 (2009).

New trial motion based on new evidence directed first to trial court.

- Supplemental brief on appeal containing an affidavit of a witness recanting the witness's trial testimony was in substance an extraordinary motion for new trial based on newly discovered evidence and should have been directed to the trial court in the first instance. Williams v. State, 254 Ga. 6, 326 S.E.2d 444 (1985).

Notice of appeal divested trial court of jurisdiction.

- Trial court's denial of defendant's new trial motion was proper because the defendant did not raise the issue of the trial counsel's ineffectiveness at the first available opportunity as defendant's filing of a notice of appeal divested the trial court of jurisdiction over such a motion and, moreover, the motion was untimely filed pursuant to O.C.G.A. § 5-5-40(a); there was no evidence that overcame the presumption of effective assistance of counsel pursuant to U.S. Const., amend. VI, as the defendant could not substantiate the allegations solely from the record and the defendant declined the opportunity to have counsel testify. Carter v. State, 275 Ga. App. 846, 622 S.E.2d 60 (2005).

Filing of notice of appeal did not divest trial court of jurisdiction.

- Because the defendant's pro se motion for a new trial was filed within the time allotted for an out-of-time appeal, the fact that the defendant filed a pro se notice of appeal did not divest the trial court of jurisdiction to consider the motion for a new trial; thus, the denial of the motion, which contained a claim of ineffective assistance of counsel claim, was not a nullity for purposes of consideration by the court of appeals of the denial of the ineffective assistance of counsel claim. Hood v. State, 282 Ga. 462, 651 S.E.2d 88 (2007).

Denial of parent's request for transcript of termination hearing.

- Parent alleged the trial court erred in denying the parent a copy of the transcript of the hearing on the petition for termination of parental rights for use at a new trial hearing. However, under O.C.G.A. § 5-5-40(c), the trial court had discretion to hear and determine the new trial motion before the transcript of evidence and proceedings was prepared and filed. In re D. R., 298 Ga. App. 774, 681 S.E.2d 218 (2009), overruled on other grounds, In re A.C., 285 Ga. 829, 686 S.E.2d 635 (2009).

Motion for new trial should have raised issue of ineffective assistance of counsel.

- Defendant's convictions for rape, incest, child molestation, and cruelty to children were proper because the defendant's ineffective assistance of counsel claim was procedurally barred. In order for the defendant's claim of ineffectiveness to have been heard by the appellate court, the defendant's new counsel should have amended the motion for new trial to include a claim for ineffective assistance, pursuant to O.C.G.A. § 5-5-40; having failed to do so, the defendant failed to preserve the issue for review. Harrison v. State, 299 Ga. App. 744, 683 S.E.2d 681 (2009).

Motion filed while defendant a fugitive.

- Because the defendant was a fugitive when defense counsel filed the defendant's motion for a new trial, the defendant waived the defendant's right to seek such relief, even though the defendant was no longer a fugitive at the time the motion was dismissed; accordingly, the trial court properly denied the defendant's motion to reinstate the motion for a new trial. Moreover, so long as the defendant remained a fugitive, the defendant's attorney was not entitled to assert the defendant's rights to postconviction relief on the defendant's behalf. Harper v. State, 300 Ga. App. 25, 684 S.E.2d 96 (2009), cert. denied, No. S10C0152, 2010 Ga. LEXIS 7 (Ga. 2010).

Creditor's claim was nondischargeable.

- Creditor lost the creditor's bid for a grant of summary judgment on the creditor's claim that the judgment was nondischargeable per 11 U.S.C. § 523 based on the claimed collateral estoppel effect of a Georgia state court default judgment awarding damages for the creditor's father's death because the creditor did not establish that the judgment was final and nonappealable in that the creditor did not show that the judgment was not subject to review under the "extraordinary cases" exception to the 30-day period for filing a motion for a new trial established in O.C.G.A. § 5-5-40(a). Terhune v. Houser (In re Houser), 458 Bankr. 771 (Bankr. N.D. Ga. 2011).

Litigant arguing same issue for tenth time.

- In an action which represented the tenth time a litigant had made the same argument that summary disposition of a prior state court case deprived the litigant of the federal Seventh Amendment right to a jury trial, a motion for a new trial was properly dismissed, given that: (1) the claims therein had been previously addressed and rejected; (2) Ga. Const. 1983, Art. I, Sec. I, Para. XII was a right of choice provision, not a right of access provision; and (3) the motion was both untimely under O.C.G.A. § 5-5-40(a), and filed in the wrong county court in violation of O.C.G.A. § 9-11-60(b). Crane v. Poteat, 282 Ga. App. 182, 638 S.E.2d 335 (2006), cert. denied, 2007 Ga. LEXIS 54 (Ga. 2007); cert. dismissed, 551 U.S. 1101, 127 S. Ct. 2912, 168 L. Ed. 2d 241 (2007).

Motion in custody modification proceeding.

- Trial court had authority to add the alcohol-related provisions to the custody order because the mother filed the motion for new trial 21 days after entry of the modification order, which was an ordinary motion for new trial, and the new evidence of the father's drunk driving arrests was material and showed a pattern of behavior justifying the condition. Lester v. Boles, 330 Ga. App. 711, 769 S.E.2d 133 (2016).

Mandatory procedure must be followed in partition action.

- Denial of the appellant's motion for a new trial was reversed because in light of the mandatory language in the Uniform Partition of Heirs Property Act (UPHPA), O.C.G.A. § 44-6-181(b), the trial court erred in not making an initial determination, prior to ordering the parties to mediation, whether the property was heirs property and, if so, it was required to partition the property pursuant to the UPHPA unless all of the cotenants, not just all of the non-defaulting cotenants, otherwise agreed. Faison v. Faison, 344 Ga. App. 600, 811 S.E.2d 431 (2018).

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, §§ 4, 69 et seq., 356 et seq., 384.

18B Am. Jur. Pleading and Practice Forms, New Trial, § 14.

C.J.S.

- 66 C.J.S., New Trial, § 188 et seq., 218, 265 et seq.

ALR.

- Inability to perfect record for appeal as ground for new trial, 16 A.L.R. 1158; 107 A.L.R. 603.

Motion for new trial as suspension or stay of execution or judgment, 121 A.L.R. 686.

Right of trial court to grant new trial as affected by appellate proceedings, 139 A.L.R. 340.

Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 A.L.R.2d 852.

What constitutes final judgment within provision or rule limiting application for new trial to specified period thereafter, 34 A.L.R.2d 1181.

New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.

Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits, 54 A.L.R.2d 1229.

Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.

Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788.

Amendment, after expiration of time for filing motion for new trial in civil case, of motion made in due time, 69 A.L.R.3d 845.

Amendment, after expiration of time for filing motion for new trial in criminal case, of motion made in due time, 69 A.L.R.3d 933.

Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.

Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 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 A.L.R.4th 664.

Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875.