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2018 Georgia Code 9-11-46 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-11-46 Case Law from Google Scholar Amendments to OCGA 9-11-46

TITLE 9 CIVIL PRACTICE

Section 11. Civil Practice Act, 9-11-1 through 9-11-133.

ARTICLE 6 TRIALS

9-11-46. Exceptions unnecessary; objections to rulings or orders.

  1. Formal exceptions to rulings or orders of the court are unnecessary. For all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.
  2. When motion for mistrial or other like relief is made, the question is thereby presented as to whether the moving party is entitled to the relief therein sought or to any lesser relief, and where such motion is denied in whole or in part, it shall not be necessary that the moving party thereafter renew his motion or otherwise seek further ruling by the court.

(Ga. L. 1966, p. 609, § 46.)

U.S. Code.

- For provisions of Federal Rules of Civil Procedure, Rule 46, see 28 U.S.C.

JUDICIAL DECISIONS

General Consideration

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).

Objections

Subsection (a) of this section does not exempt party from voicing some objection to remarks that have the effect of excluding certain evidence from the jury's consideration when such party has opportunity to object. Sancken Assoc. v. Stokes, 119 Ga. App. 282, 166 S.E.2d 924 (1969); Stephenson v. Wildwood Farms, Inc., 194 Ga. App. 728, 391 S.E.2d 706 (1990).

Under subsection (a), objecting party may either make known to court action which the opposing party desires court to take, such as mistrial, or make known the party's objection to court's action and ground therefor. 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.

It is clear that, prior to enactment of subsection (a) of O.C.G.A. § 9-11-46, there were four, rather than three, recognized "available actions" which the trial court could be requested to take with regard to allegedly improper closing argument in either a civil or a criminal case; in addition to the present three "available actions", counsel was also authorized merely to object on stated grounds and thereby implicitly request that the trial court acknowledge the impropriety of the closing argument by sustaining the objections thereto, however nothing in subsection (a) supports the conclusion that, contrary to this prior authority, a mere objection on stated grounds should no longer be considered a viable request for "available action" in civil cases. Garner v. Victory Express, Inc., 264 Ga. 171, 442 S.E.2d 455 (1994).

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).

Mistrials

Trial judge, in passing on motions for mistrial, has broad discretion, dependent on circumstances of each case, which will not be disturbed unless manifestly abused. Houston v. Roberts, 150 Ga. App. 350, 258 S.E.2d 34 (1979).

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).

RESEARCH REFERENCES

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.

Cases Citing O.C.G.A. § 9-11-46

Total Results: 5  |  Sort by: Relevance  |  Newest First

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Sharpe v. Dep't of Transp., 476 S.E.2d 722 (Ga. 1996).

Cited 56 times | Published | Supreme Court of Georgia | Oct 7, 1996 | 267 Ga. 267, 96 Fulton County D. Rep. 3530

...raising an objection. Patton was rendered 60 years before the enactment of the Civil Practice Act with its rejection of stratagems that impede the desired goal of "just, speedy, and inexpensive" resolution of civil disputes. OCGA § 9-11-1. See OCGA § 9-11-46(a), which abolished formal exceptions and holds sufficient those objections asserted "at the time the ruling or order of the court is made or sought." Abolishing the Patton -style motion to strike is consistent with the prevailing procedural rule requiring contemporaneous objection....
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Plaza Props., Ltd. v. Prime Bus. Investments, Inc., 538 S.E.2d 51 (Ga. 2000).

Cited 17 times | Published | Supreme Court of Georgia | Oct 30, 2000 | 273 Ga. 97, 2000 Fulton County D. Rep. 4016

...art of the trial court's ruling—proceeding with a non-jury trial—on which the grant of their continuance was conditioned. We begin our analysis regarding whether the appellants had an obligation to object to the ruling on the continuance with OCGA § 9-11-46(a)....
...res the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him. OCGA § 9-11-46(a) dispensed with the unnecessarily formal ritual of excepting to a ruling after a trial court has taken "action contrary to that requested by a party or overrules an objection made by a party." [4] It has been stated that Georgia, through OCGA §§ 9-11-46 and 5-6-49, has "abolished the common law's requirement of a `bill of exceptions,'" [5] and that "[o]nce the trial court has addressed a party's motion or objection and has issued a ruling, the party adversely affected need not then further object or `except' to the trial court's ruling in order to preserve the issue for appeal." [6] OCGA § 9-11-46, however, still requires a party to object to action taken by the trial court or to inform the trial court of the action the party desires the trial court to take. [7] The purpose is to give the trial court the opportunity to rule correctly and to make a *54 clear and complete record for appellate review. [8] Moreover, § 9-11-46 does not do away with the acquiescence rule.......
...uling was correct by submitting to it. (Cit.)" [10] Of course, the acquiescence rule only applies if the party objecting to the trial court's ruling on appeal did not voice that objection before the ruling. If the party did object before the ruling, § 9-11-46 relieves the party of having to object once the ruling is made....
...e defendant waived his objection to the trial court's action by failing to object. [14] Furthermore, these cases are consistent with the interpretation that federal courts have placed on Federal Rule of Civil Procedure 46, which is identical to OCGA § 9-11-46(a)....
...We conclude, however, that Ford was wrongly decided. Although there is no longer a rule requiring an exception to a trial court's ruling, there is still a requirement, as discussed above, that a party inform a trial court of his objections to the action taken by the trial court. The goal of OCGA § 9-11-46(a) was to dispense with the formalistic and redundant requirement that a party except to a trial court's ruling when, for example, a party, before the ruling in question, has requested that a trial court take certain action or has lodged a...
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Garner v. Victory Express, Inc., 264 Ga. 171 (Ga. 1994).

Cited 10 times | Published | Supreme Court of Georgia | May 9, 1994 | 442 S.E.2d 455, 94 Fulton County D. Rep. 1611

...App. 481, 482 (436 SE2d 521) (1993). Appellant's application for a writ of certiorari was granted in order to determine "whether the objection made at trial was sufficient to preserve the matter for appellate review." 1. Relying entirely upon OCGA § 9-11-46 (a), this court in Seaboard C.L.R....
...instruction or admonition of the jury plus a reprimand or rebuke of offending counsel; or, as a last resort, (3) mistrial. Compare Hall v. State, 180 Ga. App. 881, 882 (3) (350 SE2d 801) (1986) (holding that, by virtue of its sole reliance upon OCGA § 9-11-46 (a), Seaboard C.L.R....
...Wallace, supra at 365 (4). Although the Court of Appeals was bound by Seaboard C.L.R. Co., this court is free to consider the continuing viability of the holding therein. Accordingly, we now undertake to do so. 2. It is clear that, prior to enactment of OCGA § 9-11-46 (a), there were four, rather than three, recognized "available actions" which the trial court could be requested to take with regard to allegedly improper closing argument in either a civil or a criminal case....
...or invoke some ruling or instruction with reference thereto by the court. [Cits.] (Emphasis supplied.) Ehrlich v. Mills, 203 Ga. 600, 601 (4) (48 SE2d *173 107) (1948). See also Joyner v. State, 208 Ga. 435 (2) (67 SE2d 221) (1951). Nothing in OCGA § 9-11-46 (a) supports the conclusion that, contrary to this prior authority, a mere objection on stated grounds should no longer be considered a viable request for "available action" in civil cases....
...iling "promptly to require [opposing counsel] to desist from such argument, this being in effect what counsel ... had asked." Brooks v. State, 55 Ga. App. 227, 232 (189 SE 852) (1937). It follows that Seaboard C.L.R. Co. erroneously relied upon OCGA § 9-11-46 (a) as authority for the proposition that, in a civil case, an objection to closing argument on stated grounds is not sufficient to invoke a ruling by the trial court which is reviewable on appeal....
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Davie v. State, 463 S.E.2d 112 (Ga. 1995).

Cited 9 times | Published | Supreme Court of Georgia | Oct 30, 1995 | 265 Ga. 800

...Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). [3] Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8 (1976). [4] See O.C.G.A. § 5-6-49; see also 1 McCormick on Evidence § 52 at 209 (4th ed. 1992). [5] The same rule applies in civil actions. O.C.G.A. § 9-11-46....
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Ferdinand v. City of Atlanta, 674 S.E.2d 309 (Ga. 2009).

Cited 2 times | Published | Supreme Court of Georgia | Mar 9, 2009 | 285 Ga. 121, 2009 Fulton County D. Rep. 751

...it. Thank you." Counsel's final words were: "Okay. Take exception, Your Honor." As support for its contention that this exchange was insufficient to inform the court of what court action Ferdinand was objecting to, and the grounds therefor, see OCGA § 9-11-46(a), the City cites Dortch v....