Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1993, Title 81, are included in the annotations for this Code section.

Party cannot merely agree to trial procedure.

- Although a party need not except to an unfavorable ruling, the party cannot merely agree to the procedure directed by the trial court; neither can the party engage in conduct or trial procedure which aids in fostering the ruling of which the party later seeks to complain. Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265, cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).

Cited in Lane v. State, 118 Ga. App. 688, 165 S.E.2d 474 (1968); State Hwy. Dep't v. Cantrell, 119 Ga. App. 241, 166 S.E.2d 604 (1969); Georgia Power Co. v. Slappey, 121 Ga. App. 534, 174 S.E.2d 361 (1970); Davis v. Camp Concrete Prods. Co., 122 Ga. App. 551, 177 S.E.2d 798 (1970); Seaboard Coast Line R.R. v. Wallace, 123 Ga. App. 490, 181 S.E.2d 542 (1971); Clyatt v. State, 126 Ga. App. 779, 192 S.E.2d 417 (1972); Moorehead v. Counts, 130 Ga. App. 453, 203 S.E.2d 553 (1973); Carter v. State, 141 Ga. App. 464, 233 S.E.2d 856 (1977); Waddill v. Waddill, 143 Ga. App. 806, 240 S.E.2d 129 (1977); Burce v. State, 146 Ga. App. 383, 246 S.E.2d 412 (1978); Georgia Power Co. v. Green, 158 Ga. App. 717, 282 S.E.2d 145 (1981); Gee v. Chattahoochee Tractor Sales, Inc., 172 Ga. App. 351, 323 S.E.2d 176 (1984); Stone v. State, 177 Ga. App. 750, 341 S.E.2d 280 (1986); Oden v. Legacy Ford-Mercury, Inc., 222 Ga. App. 666, 476 S.E.2d 43 (1996).

Affidavit attached to brief as sufficient objection.

- In a proceeding by a lessor for compensation for an easement on condemned property, the lessor's affidavit in response to the condemnor's motion for direction making known to the court that the issue before the court involved questions of law and fact was sufficient to raise the issue on appeal. S & S Food Servs., Inc. v. DOT, 222 Ga. App. 579, 475 S.E.2d 197 (1996).

Invocation of judicial ruling unnecessary on court's erroneous expression of opinion.

- When the error is an expression of opinion from the bench, the error has already been committed without necessity of invoking a judicial ruling to present a reviewable error. Speagle v. Nationwide Mut. Fire Ins. Co., 138 Ga. App. 384, 226 S.E.2d 459 (1976), distinguishing Seaboard Coast Line R.R. v. Wallace, 227 Ga. 363, 180 S.E.2d 743 (1971), and Averette v. Oliver, 128 Ga. App. 54, 195 S.E.2d 925 (1973), as dealing with prejudicial argument and improper conduct of opposing counsel.

Relief available on objection to argument.

- When there is objection to argument, granting of the following forms of relief are available to the court: (1) an instruction or admonition to the jury to disregard the improper argument; or, if this is deemed inadequate to remove the harmful effect, (2) instruction or admonition of the jury plus a reprimand or rebuke of offending counsel; or, as a last resort, (3) mistrial. Averette v. Oliver, 128 Ga. App. 54, 195 S.E.2d 925 (1973).

Seaboard Coast Line R. Co., 227 Ga. 363, 180 S.E.2d 743 (1971) is overruled and Hall v. State, 180 Ga. App. 881, 350 S.E.2d 801 (1986), which sets forth the applicable requirements for the preservation of error in closing argument in a criminal case, is henceforth to be followed and applied in addressing an enumeration of error which relates to allegedly improper closing argument in a civil case. Garner v. Victory Express, Inc., 264 Ga. 171, 442 S.E.2d 455 (1994).

Hearing on attorney's fees.

- Trial court erred in awarding a property owner $7,515 in attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) against a county board of tax assessors after a jury valued the property in question substantially lower than the board's valuation; the record did not support the trial court's conclusion that the property was returned for taxation by operation of law pursuant to O.C.G.A. § 48-5-20(a)(2), and the board did not waive the board's objection to the fees, because the trial court did not hold a hearing on the issue of the attorney's fees, pursuant to O.C.G.A. § 9-11-46(a), and the board therefore did not have an opportunity to object to the award. Fulton County Bd. of Tax Assessors v. Butner, 258 Ga. App. 68, 573 S.E.2d 100 (2002).

Directed verdicts.

- When the trial court sua sponte grants a directed verdict, the party against whom the verdict was directed may challenge the grant by timely appeal notwithstanding the lack of either an objection or exception to the trial court's ruling. Wade v. Polytech. Indus., Inc., 202 Ga. App. 18, 413 S.E.2d 468 (1991).

To make an objection to evidence available in reviewing court, it must appear that the objection was made in trial court, and upon what grounds. Miller v. Coleman, 213 Ga. 125, 97 S.E.2d 313 (1957) (decided under former Code 1933, T. 81).

For appellate court to reverse judgment refusing to grant mistrial, it must affirmatively appear that a mistrial was essential to preserve the party's right to a fair trial. Fievet v. Curl, 96 Ga. App. 535, 101 S.E.2d 181 (1957) (decided under former Code 1933, T. 81).

Corrective measure for improper admission of evidence in discretion of court.

- When motion for mistrial is made on ground that inadmissible evidence was placed before the jury, corrective measure to be taken by the trial court is largely a matter of discretion, and when proper corrective measures are taken and there is no abuse of discretion, refusal to grant a mistrial is not error. Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979).

Mistrial for improper remarks of counsel on motion of either party.

- Former Code 1933, § 81-1009 (see now O.C.G.A. § 9-10-185) had been modified by subsection (b) of Ga. L. 1966, p. 609, § 46 (see now O.C.G.A. § 9-11-46), so that the trial court in a civil case may, upon motion of either party, grant a mistrial for improper remarks of counsel. Counts v. Moorehead, 232 Ga. 220, 206 S.E.2d 40 (1974).

Disclosure of insurance policy as ground for mistrial.

- In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of mere existence of such contract is a ground for mistrial. City Council v. Lee, 153 Ga. App. 94, 264 S.E.2d 683 (1980).

Am. Jur. 2d.

- 75 Am. Jur. 2d, Trial, §§ 395 et seq., 483 et seq. 75B Am. Jur. 2d, Trial, §§ 1462, 1694, 1701, 1722 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 292, 315. 35B C.J.S., Federal Civil Procedure, § 963. 88 C.J.S., Trial, § 157.

ALR.

- What constitutes accused's consent to court's discharge of jury or to grant of state's motion for mistrial which will constitute waiver of former jeopardy plea, 63 A.L.R.2d 782.

Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal, 64 A.L.R.2d 158.

Right to withdraw motion for mistrial, 100 A.L.R.2d 375.