Former Civil Code 1910,

§ 6094 (see O.C.G.A. § 5-5-48) and former Civil Code 1910, §§ 6095, 6096, 6097 (see O.C.G.A. § 5-5-49) must be construed together. - Former Civil Code 1910, § 6094 (see O.C.G.A. § 5-5-48) and former Civil Code 1910, §§ 6095, 6096, 6097 (see O.C.G.A. § 5-5-49) related to trial of cases in which new trials have been granted, and must be construed together. Henry v. State, 20 Ga. App. 742, 93 S.E. 311 (1917).

Effect of grant of new trial by Supreme Court is to require case to be heard de novo unless specific direction be given in regard thereto. Leventhal v. Baumgartner, 209 Ga. 404, 73 S.E.2d 194 (1952); Baker v. Decatur Lumber & Supply Co., 210 Ga. 805, 82 S.E.2d 820 (1954).

When issues tried by jury were upon exceptions to an auditor's fact findings.

- When, after rendition of verdict and judgment, new trial is granted, case stands upon docket for trial as if there had been no trial. This applies when case which was one at law had been referred to auditor, and issues tried by jury were upon exceptions to auditor's findings on facts. Mayor of Monroe v. Fidelity & Deposit Co., 50 Ga. App. 865, 178 S.E. 767 (1935).

When evidence adduced at first trial entitled movant to recovery as matter of law.

- Statute applies notwithstanding that, under law of case as laid down by appellate court when reversing judgment of trial court and granting new trial, party at whose instance new trial was granted is, under evidence adduced upon trial, entitled, as a matter of law, to recovery. Scott v. Powell Paving Co., 43 Ga. App. 705, 159 S.E. 895 (1931).

When case reversed, evidence sufficiency not addressed.

- Enumerations of error relating to sufficiency of evidence will not be addressed on appeal when a case is reversed, since new or additional evidence may be presented at a new trial. Vitello v. Stott, 222 Ga. App. 134, 473 S.E.2d 504 (1996).

Testimony rendered at first trial cannot be ground for dismissal of second trial.

- Testimony, by reason of rendition at one trial, does not operate as admission in judicio which would as a matter of law preclude recovery upon subsequent trial. Scott v. Powell Paving Co., 43 Ga. App. 705, 159 S.E. 895 (1931).

Even when a new trial has been granted on ground that, under testimony of plaintiff personally, plaintiff was as a matter of law not entitled to recover, case stands on docket for trial as though no trial had been had and it is error for court, on call of case for second trial, to dismiss the case upon motion of the defendant, on ground that testimony of the plaintiff as adduced on former trial of case operated to preclude recovery by the plaintiff. Cook v. Attapulgus Clay Co., 52 Ga. App. 610, 184 S.E. 334 (1936).

Although testimony of party to case may as a matter of law preclude recovery in the party's favor, it does so only as respects trial at which testimony is rendered and is not grounds for dismissal of new trial, because after new trial has been granted, case stands in posture of de novo proceeding as though no trial had been had. Napier v. Napier, 221 Ga. 813, 147 S.E.2d 422, appeal dismissed, 222 Ga. 681, 151 S.E.2d 712 (1966).

Grant of directed verdict authorized.

- At a second trial following the grant of plaintiff's motion for a new trial, the trial court was authorized to dismiss the defendant's counterclaims and grant a directed verdict for the plaintiff. Tyson v. Cheek Mechanical & Elec. Serv., Inc., 218 Ga. App. 134, 460 S.E.2d 536 (1995).

Party's contradictory testimony from first trial is considered extrajudicial admission or impeaching testimony.

- Party to case who has testified on former trial of that case may, upon subsequent trial of same case, give testimony in contradiction of that party's testimony given upon former trial, and, when so testifying, that party's testimony upon former trial is, when introduced in evidence on subsequent trial, in nature of an extrajudicial admission or impeaching testimony, whose probative value is for the jury. Scott v. Powell Paving Co., 43 Ga. App. 705, 159 S.E. 895 (1931).

While party's testimony at first trial may have been different from the party's testimony at the second trial, and may be introduced as an admission or impeaching testimony, it will be for the jury to determine the testimony's probative value. Cook v. Attapulgus Clay Co., 52 Ga. App. 610, 184 S.E. 334 (1936).

Charge on second trial cannot be based on evidence or requests from first trial.

- Notwithstanding plaintiff in error in first trial made written request for charge on law of undue influence, nevertheless upon second trial it was error for trial judge to charge on that subject when there was no evidence to authorize charge on undue influence. Leventhal v. Baumgartner, 209 Ga. 404, 73 S.E.2d 194 (1952).

Delay in paying costs.

- Delay of slightly more than 30 days in paying the bill of costs because of appellant's medical condition was properly found to be neither unreasonable nor inexcusable. Poythress v. Savannah Airport Comm'n, 229 Ga. App. 303, 494 S.E.2d 76 (1997).

Failure to conduct new trial.

- On remand, because the only relief sought by a distributor in a contract action with a buyer was a new trial, the trial court erred in entering judgment in favor of the distributor without conducting a new trial; moreover, the buyer was not foreclosed from presenting additional or different evidence in support of its claim for lost profits in the trial. Strickland & Smith, Inc. v. Williamson, 281 Ga. App. 784, 637 S.E.2d 170 (2006).

Reconsideration not required.

- O.C.G.A. § 5-5-48 did not require de novo reconsideration of rulings made prior to the first trial, particularly when there was no contention that additional evidence or changed circumstances would justify altering the prior ruling. Trimble v. State, 297 Ga. 180, 773 S.E.2d 188 (2015).

Cited in United States Fid. & Guar. Co. v. Clarke, 187 Ga. 774, 2 S.E.2d 608 (1939); Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939); Underwood v. D.C. Heath & Co., 64 Ga. App. 180, 12 S.E.2d 464 (1940); Weatherly v. Parr, 74 Ga. App. 526, 40 S.E.2d 445 (1946); Malcom v. Webb, 211 Ga. 449, 86 S.E.2d 489 (1955); Reagan v. Reagan, 221 Ga. 173, 143 S.E.2d 736 (1965).

Am. Jur. 2d.

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

ALR.

- Liability insurer's duty to pay injured person as affected by appeal or grant of new trial, or pendency of appeal or motion for new trial, from judgment against insured, or by the fact that time for appeal or motion for new trial has not expired, 31 A.L.R.3d 899.