O.C.G.A.

O.C.G.A. § 5-5-42 (2019)

Form for motion for new trial

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) The form for motion for new trial in civil cases prescribed in subsection (b) of this Code section shall be sufficient, but any other form substantially complying therewith shall also be sufficient.

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(b) Form for motion for new trial in civil cases: IN THE Plaintiff v. Defendant

STATE OF GEORGIA ) ) ) ) Civil Action ) File no. ) ) ) MOTION FOR NEW TRIAL Defendant moves the court to set aside the verdict returned herein on (date) , , and the judgment entered thereon on (date) , , and to grant a new trial on the following grounds:

(1) The verdict is contrary to law.

(2) The verdict is contrary to the evidence.

(3) The verdict is strongly against the weight of the evidence.

(4) The court erred in permitting witness Smith to testify as follows: .

(5) The court erred in failing to charge the jury on unavoidable accident as requested in writing by defendant.

(6) The court erred in charging the jury as follows: Dated:

. Attorney for defendant Address (Here set forth rule nisi and certificate of service.)

(c) The form for motion for new trial in criminal cases in subsection (d) of this Code section is declared to be sufficient but any other form substantially complying therewith shall also be sufficient.

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(d) Form for motion for new trial in criminal cases: IN THE The State v. Defendant

STATE OF GEORGIA ) ) ) ) Indictment ) Accusation ) ) File no. MOTION FOR NEW TRIAL Defendant moves the court to set aside the verdict returned herein on (date) , , and the sentence entered thereon on (date) , , and to grant a new trial on the following grounds:

(1) The defendant should be acquitted and discharged due to the state’s failure to prove guilt beyond a reasonable doubt.

(2) Although the state proved the defendant’s guilt beyond a reasonable doubt, the evidence was sufficiently close to warrant the trial judge to exercise his discretion to grant the defendant a retrial.

(3) The court committed an error of law warranting a new trial. Dated:

. Attorney for defendant Address (Here set forth rule nisi and certificate of service.)

History

(Ga. L. 1965, p. 18, § 20; Ga. L. 1983, p. 702, § 1; Ga. L. 1984, p. 22, § 5; Ga. L. 1999, p. 81, § 5.)

Annotations

Cross references. - Form of motion to dismiss, presenting defense of failure to state a claim, § 9-11-119.

Law reviews. - For article, ‘‘1966 Amendments to the Appellate Procedure Act of 1965,’’ see 2 Ga. St. B.J. 433 (1966).

JUDICIAL DECISIONS Testimony objected to must be identified in motion. - While requirements for contents of amended ground of motion for new trial have been relaxed, statute still requires that testimony objected to be

identified. Carroll v. Morrison, 116 Ga. App. 575, 158 S.E.2d 480 (1967). Motion otherwise correct not void for failure to specify date of judgment. - Motion for new trial that shows

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style and number of case, and court in which the case is pending is not void for not specifying date of judgment to be set aside. Berman v. Berman, 231 Ga. 216, 200 S.E.2d 870 (1973). Subsection (d) not admission of guilt. - Trial court erred in denying the defendant’s request for discharge and acquittal due to the state’s failure to prove guilt beyond a reasonable doubt when the trial court perceived paragraph (d)(2) to

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be an admission that the state had proved guilt beyond a reasonable doubt, and under modern rules of alternative pleading the inconsistent grounds in defendant’s motion should not have been used as admissions against the defendant. Hilson v. State, 204 Ga. App. 200, 418 S.E.2d 784 (1992). Cited in Millhollan v. Watkins Motor Lines, 116 Ga. App. 452, 157 S.E.2d 901 (1967).

RESEARCH REFERENCES Am. Jur. 2d. - 58 Am. Jur. 2d, New Trial, § 343. Am. Jur. Pleading and Practice Forms. - 18B Am. Jur. Pleading and Practice Forms, New Trial, § 80.

ALR. - Necessity and propriety of counteraffidavits in opposition to motion for new trial in civil case, 7 ALR3d 1000.

Notes of Decisions

Cited in 5 cases, 1984–2017 · leading case: Southall v. State, 796 S.E.2d 261 (Ga. 2017).

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Southall v. State, 796 S.E.2d 261 (Ga. 2017). · cites it 2× “See also OCGA §§ 5-5-42 (requiring that motions for new trial substantially comply with forms that identify the judgment involved); 5-6-37 (notice of appeal must include “a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal”).”

Brockman v. State, 739 S.E.2d 332 (Ga. 2013). · cites it 2× “See OCGA § 5-5-42 (c) and (d) (setting forth the suggested “form for motion for new trial in criminal cases” and providing as one of the enumerated grounds for the granting of a new trial that, “[although the state proved the *715 defendant’s guilt beyond a reasonable doubt, the…”

Ward v. State, 311 S.E.2d 449 (Ga. 1984). · cites it 2× “The skeleton motion for new trial was overruled on April 29,1983.”

Hilson v. State, 418 S.E.2d 784 (Ga. Ct. App. 1992). · cites it 2× “The form for a motion for new trial in OCGA § 5-5-42 (d) states the following grounds: “(1) The defendant should be acquitted and discharged due to the state’s failure to prove guilt beyond a reasonable doubt.”

Southall v. State (Ga. 2017). · cites it 2× “See also OCGA §§ 5-5-42 (requiring that motions for new trial substantially comply with forms that identify the judgment involved); 5-6-37 (notice of appeal must include “a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal”).”

— 5-5-42(c) — 1 case

Ward v. State, 311 S.E.2d 449 (Ga. 1984). “The skeleton motion for new trial was overruled on April 29,1983.”

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