Cross references.

- Right of appeal from confession of judgment, § 9-12-18.

Appeals from decisions of judge of superior court in cases involving acquisition of property by state, counties, and municipalities for public road construction and other transportation purposes, § 32-3-14 et seq.

Judicial review and subsequent appeal of decisions of administrative bodies, §§ 50-13-19,50-13-20.

Requirement of expeditious determination of actions and appeals involving challenges to public improvements, projects, or facilities, § 50-15-3.

Law reviews.

- For article discussing developments in Georgia criminal law in 1976 to 1977, see 29 Mercer L. Rev. 55 (1977).

JUDICIAL DECISIONS

Statute providing for appeal but prescribing no procedure for doing so.

- Where statute provides for appeal in certain cases and entirely fails to prescribe manner in which appeals are to be entered in class of cases it deals with, appellant is relegated to processes provided under general law. Rogers v. Anderson, 95 Ga. App. 637, 98 S.E.2d 388 (1957).

CHAPTER 1 GENERAL PROVISIONS

Reserved Reserved. Repealed by Ga. L. 1983, p. 884, § 4-2, effective July 1, 1983.

CHAPTER 2 APPEALS TO JURY IN JUSTICE OF THE PEACE COURT

5-2-1 through 5-2-6.

Editor's notes.

- These Code sections were based on Orig. Code 1863, §§ 4069, 4070, 4082; Code 1868, §§ 4098, 4099, 4111; Ga. L. 1878-79, p. 153, §§ 1 - 6; Ga. L. 1878-79, p. 190, § 1; Code 1882, §§ 4157a - 4157f, 4157i; Ga. L. 1882-83, p. 64, § 1; Ga. L. 1882-83, p. 95, § 1; Civil Code 1895, §§ 4140 - 4147; Civil Code 1910, §§ 4740 - 4747; Ga. L. 1921, p. 116, § 1; Code 1933, §§ 6-304, 6-401 - 6-407; Ga. L. 1953, Nov.-Dec. Sess., p. 312, § 1.

CHAPTER 3 APPEALS TO SUPERIOR OR STATE COURT

Article 1 General Provisions.
Article 2 Procedure.
Cross references.

- Exercise of judicial power, Ga. Const. 1983, Art. VI, Sec. IV, Para. I.

Procedure for appeals from decisions of superior court reviewing decisions of lower courts on appeal, § 5-6-35.

Appeals to superior court from final action of Department of Banking and Finance, § 7-1-90.

Description of extent of authority of superior court to exercise appellate jurisdiction and to exercise general supervision over all inferior tribunals, § 15-6-8.

Appeal to superior court from decision of tribunal established to hear matters relating to construction or administration of school law, § 20-2-1160.

Appeals to superior court from decisions of registration officers denying right of voter registration, § 21-2-224.

Appeal to jury in superior court from decision of assessors in condemnation proceedings, § 22-2-80 et seq.

Appeal to superior court from award of special master in condemnation proceeding, § 22-2-112.

Right of appeal to superior court from convictions for traffic offenses, § 40-13-28.

Appeal to superior court from decision of State Board of Equalization, § 48-2-18.

Appeal to superior court from orders, rulings, or findings of state revenue commissioner, § 48-2-59.

Appeal to superior court from final decision by administrative agency in contested case, § 50-13-19.

JUDICIAL DECISIONS

Chapter 11 of Title 9 does not deal with appellate court powers.

- Scope of Ga. L. 1966, p. 609, § 1 (see O.C.G.A. C. 11, T. 9) is procedure in trial courts of record, and its rules do not deal with powers of appellate courts. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).

Applicability.

- Appeals which may be taken to superior courts are limited by O.C.G.A. C. 3, T. 5. Walton County v. Scenic Hills Estates, Inc., 261 Ga. 94, 401 S.E.2d 513 (1991).

RESEARCH REFERENCES

ALR.

- Power of legislature to require appellate court to review evidence, 19 A.L.R. 744; 24 A.L.R. 1267; 33 A.L.R. 10.

Amendment in appellate court increasing amount claimed beyond, or reducing amount claimed to, jurisdiction of court below, 168 A.L.R. 641.

Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 A.L.R.2d 153.

Appealability of state court's order granting or denying motion to disqualify attorney, 5 A.L.R.4th 1251.

ARTICLE 1 GENERAL PROVISIONS

Cross references.

- Right of appeal from cases in the justice of peace courts, Ga. Const. 1983, Art. VI, Sec. I, Para. V.

JUDICIAL DECISIONS

General Consideration

Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code Section 5-3-1, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Right to appeal to superior court is fixed by statute, and lies only from bodies or tribunals when appeal therefrom is provided by statute. Georgia Power Co. v. Friar, 47 Ga. App. 675, 171 S.E. 210 (1933), aff'd, 179 Ga. 470, 175 S.E. 807 (1934).

When amount claimed is over $50.00, the law confers right to appeal to superior court. Humphrey v. Johnson, 13 Ga. App. 557, 79 S.E. 530 (1913).

When amount in controversy is $50.00 or less, appeal will not lie as matter of right. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

Party may appeal to jury in superior court. Hendrix & McBurney v. Mason, 70 Ga. 523 (1883); Southern Express Co. v. Hilton, 94 Ga. 450, 20 S.E. 126 (1894); Wood v. McCrary, 107 Ga. 345, 33 S.E. 395 (1899).

Parties may appeal by consent from justice court to superior court when amount involved is sufficient to authorize appeal. Smith v. Rawson, 61 Ga. 208 (1878).

General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

Sections dealing with appeals to superior court from inferior courts are in pari materia.

- In case of appeal from ordinary's court (now probate court) to superior court, the various sections relating to appeals to superior court from justice's courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Assumption of failure in whole or part to obtain relief sought.

- Right given to party to appeal from judgment in justice's court is predicated on assumption that by judgment complained of appellant has failed entirely in suit or has failed to recover full amount sued for, as to hold otherwise would be to run counter to the well-settled principle that no one will be heard to complain of a judgment unless one has been injured or is aggrieved thereby. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

Party not aggrieved by judgment of trial court is without legal right to except thereto, since the party has of it no just cause of complaint. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

When party is aggrieved by judgment or decree.

- Substance of judgment, and not opinion of party, determines whether or not one is aggrieved. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

Party is aggrieved by a judgment or decree when it operates on one's rights of property, or bears directly upon one's interest. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361, 26 S.E.2d 695 (1943).

Appeal from confession of judgment.

- Appeal can be made from confession of judgment without formal entering of judgment by justice. Huff v. Whitner, Manry & Co., 8 Ga. App. 25, 68 S.E. 463 (1910).

Parallel between appeal granted by section and other sections.

- By comparing sections, which are in pari materia, substantially the same procedure is provided in cases of appeal from award of assessors in condemnation proceeding to superior court as is provided in cases of appeal from justice's court to superior court. State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939).

Cited in Armstrong v. Hand, 36 Ga. 267 (1867); Little v. Thompson, 39 Ga. 658 (1869); Brown v. Robinson, 91 Ga. 275, 18 S.E. 156 (1893); Central of Ga. Ry. v. Howard, 112 Ga. 917, 38 S.E. 338 (1901); Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908); Crawford County Bank v. Critt-Hightower Co., 17 Ga. App. 804, 88 S.E. 691 (1916); Slocumb v. Ross, 119 Ga. App. 567, 168 S.E.2d 208 (1969); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).

Applicability

1. In General

Defendant may appeal though defenses stricken in county court.

- When suit is brought in county court for sum exceeding $50.00 in amount, which results, upon trial, in judgment for plaintiff, the defendant may enter appeal to superior court even though the defenses interposed by him in county court were stricken. Helmly v. Davis, 100 Ga. 493, 28 S.E. 231 (1897).

Appeal of wrongfully dismissed case.

- If case is dismissed when judgment for the defendant should have been entered, the plaintiff may appeal. Hollis v. Doster, 113 Ga. 115, 38 S.E. 308 (1901).

Section inapplicable to proceeding in county court to evict intruder; certiorari is proper remedy. Rigell v. Sirmans, 123 Ga. 455, 51 S.E. 381 (1905).

2. Distinction Between Appeal and Certiorari

General rules.

- Certiorari will not lie when there are issues of fact involved. McDonald v. Dickens, 58 Ga. 77 (1877).

In cases of law, certiorari is proper remedy, in cases of fact, appeal is proper. Rogers v. Bennett, 78 Ga. 707, 3 S.E. 660 (1887).

If in case in county court, amount in controversy is more than $50.00 and case involves question of fact, appeal is proper remedy; if no question of fact is involved, but case rests solely on questions of law, certiorari is proper remedy. Small v. Sparks & Son, 69 Ga. 745 (1882).

Right of appeal presupposes issue to be tried by jury. Small v. Sparks & Son, 69 Ga. 745 (1882).

Distinction between statutory appeal and appeal by writ of error.

- Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. The appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, when the final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. The trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

Garnishment proceedings.

- Certiorari is proper remedy for error in judgment in proceeding seeking strengthening of attachment or garnishment bond. Gregory v. Clark, 73 Ga. 542 (1884).

Amount Claimed

Amount claimed determines right of appeal. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

Where no amount claimed, appeal to superior court will not lie. Humphrey v. Johnson, 13 Ga. App. 557, 79 S.E. 530 (1913).

It is amount claimed, and not amount recovered, which determines right of party to appeal. Taylor v. Blasingame, 73 Ga. 111 (1884); Helmly v. Davis, 100 Ga. 493, 28 S.E. 231 (1897).

Pleadings control in determining amount claimed. Singer Mfg. Co. v. Martin, 75 Ga. 570 (1885); Simmons v. Allen, 26 Ga. App. 725, 106 S.E. 811 (1921).

Method of determining amount claimed.

- Amount claimed is determined by adding principal and interest together. Bell v. Morton, 68 Ga. 831 (1882); Magarahan v. Wright & Lamkin, 83 Ga. 773, 10 S.E. 584 (1889).

Interest.

- In determining amount claimed, interest cannot be waived. McDonald v. Dickens, 58 Ga. 77 (1877); Howard v. Chamberlin, Boynton & Co., 64 Ga. 686 (1880).

Reductions at trial cannot be considered in determining amount claimed. Bell v. Davis, 93 Ga. 233, 18 S.E. 647 (1893).

Amount of execution or value of property.

- In claim cases, amount of execution or value of property determines right of appeal. Turman v. Cargill & Daniel, 54 Ga. 663 (1875); Napier Bros. v. Woodall, 118 Ga. 830, 45 S.E. 684 (1903); Adkins v. Bennett, 138 Ga. 118, 74 S.E. 838 (1912).

Reasonable attorney's fees, recoverable by statute, are considered.

- In suit in justice's court, where plaintiff, as beneficiary in life insurance policy, brought suit against insurer to recover in sum of $30.00, representing amount due plaintiff under terms of policy, $7.50 representing 25 percent of amount sued for as damages, and $50.00 representing reasonable attorney's fees as provided in by statute which authorizes recovery for damages and attorney's fees when an insurer has acted in bad faith in failing to pay amount due under policy within required time, amount sued for and claimed in suit was in excess of $50.00. Tate v. Industrial Life & Health Ins. Co., 58 Ga. App. 305, 198 S.E. 303 (1938).

Costs of suit may be added to amount claimed.

- When amount claimed by the plaintiff in garnishment proceedings was $49.60 and $2.75 costs in suit in justice court and judgment was obtained against the defendant, amount in controversy between garnishees, appellants, plaintiff, and appellee, was $52.35, and the superior court judge erred in dismissing the appeal as being one in controversy involving $50.00 or less. Gay v. Brown, 45 Ga. App. 862, 166 S.E. 374 (1932).

Attachment proceedings.

- Appeal lies when attachment for more than $50.00 is levied on property worth less than $50.00, followed by a verdict for less than that amount. Padgett v. Ford, 117 Ga. 508, 43 S.E. 1002 (1903).

Jurisdiction

Appeal imparts same jurisdiction as was possessed by county court.

- In trying appeal from county court, superior court can reach no result which could not have been reached in county court had case been finally disposed of there; hence on trial of such appeal the superior court cannot entertain an equitable petition offered by the defendant as an amendment to a plea of general issue, which petition contemplates and prays for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as rescission of contracts, cancellation of promissory notes or injunction. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

In trying appeal from county court, superior court can deal with no question of merits except as could have been raised in county court, and can render no final judgment except such as county court had jurisdiction to render. Greer v. Burnam, 69 Ga. 734 (1882); Hufbauer v. Jackson, 91 Ga. 298, 18 S.E. 159 (1893).

Amendability of summons on appeal.

- When case is on appeal in superior court from justice's court, any amendment of summons whether in matter of form or of substance, may be made, which could have been made while case was pending in primary court; the only restriction on either court is that there must be enough to amend by. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Procedural Issues

Appellant recognizes validity of summons and judgment by entering appeal to superior court. Twitty v. Bower, 84 Ga. 751, 11 S.E. 354 (1890).

Judgment appealed from need not be set forth in appeal. Georgia, F. & A. Ry. v. Penn Tobacco Co., 9 Ga. App. 840, 72 S.E. 443 (1911).

Defenses allowed by oral plea must be reduced to writing on appeal.

- In justice's court, which is not a court of record, many defenses are allowed to be made by oral plea, and on appeal to superior court these defenses are required to be reduced to writing before case proceeds to trial. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

New trial is upon prior pleadings and defenses subject to amendment.

- In appeal from county court to superior court, trial of the case is a de novo proceeding, but it by no means follows that pleadings and defenses in the case are to begin over again in the new trial; on the contrary, the new trial is had on papers connected with the case when judgment was rendered, subject to proper amendment. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Motion to dismiss summons may be made in superior court after appeal for de novo trial following trial in justice court. Furman v. Smith, 106 Ga. App. 742, 128 S.E.2d 641 (1962).

RESEARCH REFERENCES

ALR.

- Who entitled to appeal from decree admitting will to probate or denying probate, 88 A.L.R. 1158.

Change of law after decision of lower court as affecting decision on appeal or error, 111 A.L.R. 1317; 151 A.L.R. 987.

Fault or omission of justice of peace regarding bond, undertaking, or recognizance, as affecting party seeking appeal, 117 A.L.R. 1386.

Amendment in appellate court increasing amount claimed beyond, or reducing amount claimed to, jurisdiction of court below, 168 A.L.R. 641.

Appealability of ruling on demurrer to plea, answer, or reply, 171 A.L.R. 1433.

Inadequacy of verdict as ground of complaint by party against whom it is rendered, 174 A.L.R. 765.

Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below, 11 A.L.R.2d 317.

Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 18 A.L.R.2d 948.

Appealability of order overruling or sustaining motion to quash or set aside service of process, 30 A.L.R.2d 287.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Plea of guilty in justice of the peace or similar inferior court as precluding appeal, 42 A.L.R.2d 995.

Counterclaim or the like as affecting appellate jurisdictional amount, 58 A.L.R.2d 84.

Jurisdictional amount for appellate review as affected by payment or tender, or by settlement, 58 A.L.R.2d 166.

Jurisdictional amount for appellate review as affected by plaintiff's abandonment of claim, wholly or in part, 58 A.L.R.2d 177.

Ruling on motion to quash execution as ground of appeal or writ of error, 59 A.L.R.2d 692.

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.

Appealability of order relating to forfeiture of bail, 78 A.L.R.2d 1180.

Appealability of order relating to transfer, on jurisdictional grounds, of cause from one state court to another, 78 A.L.R.2d 1204.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 88 A.L.R.2d 1275, 59 A.L.R.5th 1.

Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.

Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.

Extraterritorial effect of valid award of custody of child of divorced parents, in absence of substantial change in circumstances, 35 A.L.R.3d 520.

Right of municipal corporation to review of unfavorable decision in action or prosecution for violation of ordinance - modern status, 11 A.L.R.4th 399.

5-3-1. Right of appeal from county courts and justice of the peace courts.

Reserved. Repealed by Ga. L. 1983, p. 884, § 4-2, effective July 1, 1983.

Editor's notes.

- This Code section was based on Orig. Code 1863, § 3529; Code 1868, § 3552; Ga. L. 1868, p. 131, § 2; Ga. L. 1871-72, p. 288, § 5; Ga. L. 1872, p. 40, § 1; Code 1873, § 3610a; Ga. L. 1874, p. 85, § 1; Code 1882, § 3610a; Civil Code 1895, § 4453; Civil Code 1910, § 4998; Code 1933, § 6-101.

5-3-2. Right to appeal from probate courts; exception.

  1. An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.
  2. Notwithstanding subsection (a) of this Code section, no appeal from the probate court to the superior court shall lie from any civil case in a probate court which is provided for by Article 6 of Chapter 9 of Title 15.

(Laws 1805, Cobb's 1851 Digest, p. 283; Laws 1823, Cobb's 1851 Digest, p. 497; Ga. L. 1851-52, p. 49, § 1; Ga. L. 1851-52, p. 91, § 19; Ga. L. 1859, p. 33, § 5; Code 1863, § 3530; Ga. L. 1866, p. 24, § 1; Code 1868, § 3553; Code 1873, § 3611; Code 1882, § 3611; Civil Code 1895, § 4454; Civil Code 1910, § 4999; Code 1933, § 6-201; Ga. L. 1972, p. 738, § 6; Ga. L. 1986, p. 982, § 1.)

Cross references.

- Exercise of judicial power, Ga. Const. 1983, Art. VI, Sec. I, Para. VI.

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

Law reviews.

- For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986).

JUDICIAL DECISIONS

General Consideration

Applicability.

- This section is general, and applies to all cases. Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935).

O.C.G.A. § 5-3-2 applies only to final judgments rendered by the probate court. Sears v. State, 196 Ga. App. 207, 396 S.E.2d 1 (1990).

Appeal granted under statute extends to any interested party.

- Any interested party, dissatisfied with judgment of court of ordinary (now probate court) may appeal, except in cases involving removal of a guardian. Hobbs v. Cody, 45 Ga. 478 (1872).

Creditor served by citation becomes party to proceeding, and may appeal under section if the creditor is dissatisfied with appointment of the administrator by ordinary (now judge of probate court), whether the creditor objects in court or not. Mitchell v. Pyron, 17 Ga. 416 (1855).

General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

Sections dealing with appeals to superior court from inferior courts are in pari materia.

- In case of appeal from ordinary's court (now probate court) to superior court, the various Code sections relating to appeals to superior court from justice's courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Effect on probate court's original jurisdiction over probate of wills.

- Former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2) was not intended to invade original jurisdiction of courts of ordinary (now probate courts) granted by Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI, Sec. I, Para. I) and former Code 1933, § 113-603 over probate of wills. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

Appeal to superior court with waiver of judgment of probate court.

- When appraisers filed their return for year's support, objections thereto were filed and matter was appealed by consent to superior court, and judgment of court of ordinary (now judge of probate court) was thereby expressly waived; such express waiver had same legal effect as formal decision or judgment of court of ordinary (now probate court) as to matter at issue, and status of widow as to vesting of her title was same as if decision or judgment had been formally rendered. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

In no case, except by consent of parties, can an appeal be entered from court of ordinary (now judge of probate court) to superior court until after judgment has been rendered in case by court of ordinary. Bates v. Weaver, 145 Ga. 241, 88 S.E. 986 (1916) (decided under former Code 1910, § 5011).

Forwarding of lower court original pleadings.

- It is duty of ordinary (now judge of probate court) to send to clerk of superior court the original pleadings. Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908) (decided under former Code 1895, § 4467).

Failure to send up certificate that appellant has paid costs not ground for dismissal of appeal. Morgan v. Campbell, 133 Ga. 549, 66 S.E. 369 (1909) (decided under former Code 1895, § 4467).

This section does not require that ordinary (now judge of probate court) send up with appeal papers a certificate or other evidence showing that appellant has paid costs which accrued in trial of case. Morgan v. Campbell, 133 Ga. 549, 66 S.E. 369 (1909) (decided under former Code 1895, § 4466).

Inability to extend time for appeal.

- Pretermitting when the final order occurred, the superior court correctly held that the probate court had no authority to extend the time to appeal beyond the statutorily-prescribed period of 30 days. Accordingly, the probate court's order extending the period beyond that provided for in the statute was of no legal consequence, and the superior court did not err in granting summary judgment. Duncan v. Moreland, 325 Ga. App. 364, 751 S.E.2d 139 (2013).

Parties participating fully in probate court participating in appeal to superior court.

- Superior court erred in dismissing an appeal from a probate proceeding under O.C.G.A. § 5-3-2(a) based on the court's finding that appellants, a decedent's mother and cousin, were not parties to the probate proceeding because appellants were treated by the probate court as parties and participated fully in the proceeding. In re Estate of Rogers, 323 Ga. App. 869, 748 S.E.2d 505 (2013).

Cited in Baber v. Woods, 39 Ga. 643 (1869); Redd v. Dure, 40 Ga. 389 (1869); Fite v. Black, 85 Ga. 413, 11 S.E. 782 (1890); Brodhead v. Shoemaker, 44 Ga. 518, 11 L.R.A. 567 (N.D. Ga. 1890); Ford v. Redfearn, 145 Ga. 498, 89 S.E. 611 (1916); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); Whitehurst v. Singletary, 77 Ga. App. 811, 50 S.E.2d 80 (1948); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); May v. Hadden, 211 Ga. 84, 84 S.E.2d 65 (1954); Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957); Brumbelow v. Brumbelow, 111 Ga. App. 665, 142 S.E.2d 855 (1965); Burson v. Bishop, 117 Ga. App. 602, 161 S.E.2d 518 (1968); State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796, 219 S.E.2d 1 (1975); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975); Montgomery v. DeKalb Steel, Inc., 144 Ga. App. 191, 240 S.E.2d 741 (1977); Hunter v. Hunter, 149 Ga. App. 324, 254 S.E.2d 477 (1979); Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981); Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986); Smith v. Watts, 181 Ga. App. 524, 352 S.E.2d 840 (1987); Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987); Hart v. Fortson, 263 Ga. 389, 435 S.E.2d 45 (1993); Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000); Candies v. Hulsey, 277 Ga. 630, 593 S.E.2d 353 (2004); In the Interest of J.R.R., 281 Ga. 662, 641 S.E.2d 526 (2007); Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007); Mays v. Rancine-Kinchen, 291 Ga. 283, 729 S.E.2d 321 (2012); Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201 (2014).

Applicability

1. In General

Appeal only where probate court's exclusive jurisdiction in whole case involved.

- Appeal must be from decision of court of ordinary (now probate court) in exercise of exclusive jurisdiction in whole case made by application to probate. A ruling striking some but not all grounds of caveat to application to probate a will is not such a decision. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

Motion to amend judgment does not extend time to file.

- An appeal from a motion to amend judgment of a probate court is not a final judgment and thus, is not an appealable decision within the meaning of subsection (a) of this section. Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of § 5-3-20(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

An executrix's appeal from a probate court's decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and5-3-20, the executrix should have appealed within 30 days of a final order discharging her and ordering that she return a certain amount to the estate. In re Estate of Thomas, 285 Ga. App. 615, 647 S.E.2d 326 (2007).

Appeal allowed from appointment of permanent administrator. Deckle v. McLeod, 144 Ga. 289, 86 S.E. 1082 (1915).

Decision regarding compensation and discharge of temporary administrator is appealable. Comer v. Ross, 100 Ga. 652, 28 S.E. 387 (1897).

Decision concerning application of administrator or guardian for discharge is appealable. Maloy v. Maloy, 131 Ga. 579, 62 S.E. 991 (1908).

Dismissal of petition to remove administrator is appealable. Wells v. Chambers, 28 Ga. App. 429, 111 S.E. 677 (1922).

Order denying petition by incompetent World War I veteran for removal of guardian.

- Appeal lies from order denying petition by incompetent World War I veteran for removal of guardian and appointment of new guardian, for accounting and recovery of moneys due, and for other relief, on account of alleged returns by guardian without proper vouchers and a devastavit as to certain amounts. Dillon v. Sills, 54 Ga. App. 299, 187 S.E. 725 (1936).

Appeal allowed from revocation of letters of guardianship, though no issue of fact is involved. Teasley v. Campbell, 133 Ga. 545, 66 S.E. 273 (1909); Teasley v. Vickery, 133 Ga. 721, 66 S.E. 918 (1910); Wash v. Wash, 145 Ga. 405, 89 S.E. 364 (1916).

When guardian is removed and the guardian's letters revoked, upon rule issued by ordinary (now judge of probate court), after hearing on the answer to such rule filed by guardian, the person may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936).

Decision refusing ex parte application made by executor or administrator is appealable. Findlay v. Whitmire, 15 Ga. 334 (1854).

Judgment for money against administrator or guardian under citation for settlement is appealable. Hobbs v. Cody, 45 Ga. 478 (1872).

Probate court's refusal to grant letters pendente lite is appealable. Barksdale v. Cobb, 16 Ga. 13 (1854); Gresham v. Pyron, 17 Ga. 263 (1855).

Judgment, final insofar as it adjudges that certain disbursements made by administrator were unauthorized, is appealable even though it reserves to ordinary (now judge of probate court) the right at a later date to order distribution of estate according to terms of will. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943).

Prerequisite to appeal from judgment setting apart homestead.

- Judgment of ordinary (now judge of probate court) setting apart a homestead can only be reviewed by certiorari unless objected to as provided for under former Civil Code 1895, § 2838 (see O.C.G.A. § 44-13-13). Fontano v. Mozley & Co., 121 Ga. 46, 48 S.E. 707 (1904).

Appeal from dismissal of application for homestead.

- No appeal lies from decision of ordinary (now judge of probate court) sustaining demurrer (now motion to dismiss) to application for homestead. In such case, certiorari is exclusive remedy for reviewing judgment. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024 (1900).

Habeas corpus proceedings.

- Section does not confer right of appeal from decision of ordinary (now judge of probate court) in habeas corpus proceeding. Burden v. Barron, 154 Ga. 630, 115 S.E. 1 (1922) (decided under former Code 1910, § 5011).

No direct appeal from interlocutory order.

- Appeal from probate court to superior court is for the purpose of conducting a de novo investigation in the superior court, and not for the purpose of correcting errors of law committed in the probate court. Thus, there can be no direct appeal to the superior court from an interlocutory ruling in the probate court. Driver v. State, 198 Ga. App. 643, 402 S.E.2d 524, cert. denied, 198 Ga. App. 897, 402 S.E.2d 524 (1991).

Decisions regarding annual returns of administrators are not covered by this section. Adams v. Beall, 60 Ga. 325 (1878) (decided under former Code 1873, § 3624).

Appeal by mental health facility from adverse commitment decision.

- Mental health facility did not have the right to appeal from an adverse involuntary commitment decision and the facility did not have statutory authority, nor would it have been constitutional to detain the patient pending appeal of a probate court order of discharge. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

Appeal from decisions of commissioners appointed by ordinary (now judge of probate court) not authorized. Pope v. Hays, 30 Ga. 539 (1860).

Decedent's non-party mother lacked standing to appeal.

- Notwithstanding a settlement agreement in which the decedent's wife released any interest in the decedent's estate, given that the decedent's mother was not a party in the probate court, despite publication of notice and service by the wife, the mother lacked standing to appeal the probate court's decision to award the wife a year's support. Booker v. Booker, 286 Ga. App. 6, 648 S.E.2d 445 (2007).

No appeal lies from preliminary ruling in main case.

- Appeal to superior court from preliminary ruling and before court of ordinary (now probate court) rendered judgment in the main case, would improperly usurp jurisdiction of court of ordinary, in violation of Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI. Sec. I, Para. I) and former Code 1933, § 113-613 (see O.C.G.A. § 53-5-1) depriving that court of jurisdiction to decide main question. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

2. Distinction Between Appeal and Certiorari

Certiorari is proper but not exclusive remedy to correct certain errors in decisions of courts of ordinary (now probate courts). Stephens v. Bell, 41 Ga. App. 353, 153 S.E. 99 (1930).

Election of remedy.

- When either appeal under former Civil Code 1910, § 4999 (see O.C.G.A. § 5-3-2), or certiorari under former Civil Code 1910, § 5181 (see O.C.G.A. § 5-4-2) was appropriate, movant may elect which one the movant will pursue. Pierce v. Felts, 146 Ga. 809, 92 S.E. 541 (1917).

Distinction between statutory appeal on merits and appeal by writ of error.

- Statutory appeal providing for another trial in appellate court on merits of the case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding the inquiry is into correctness of judgment upon pleading and evidence before the trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

Jurisdiction

Appeal imparts same jurisdiction as was possessed by probate court.

- Appeal brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary (now probate court). Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

Province of probate court versus proper trial court.

- In a child's appeal of a trial court's declaratory judgment that the will of a parent was republished by a codicil and that a portion of a prior order of a probate court that the ex-spouse of the testator was to be treated as if having predeceased the testator was null and void was upheld on appeal as the issue regarding the construction of the will regarding the ex-spouse was a question of law for the trial court and was not within the jurisdiction of the probate court. Honeycutt v. Honeycutt, 284 Ga. 42, 663 S.E.2d 232 (2008).

Effect of Appeal

Whole case brought up.

- By § 5-3-29, appeal under this section brings up whole case for new hearing. Moody v. Moody, 29 Ga. 519 (1859).

Case on appeal from the court of ordinary (now probate court) brings the whole case up for a new hearing. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

De novo investigation.

- Appeal under section places matter in superior court for de novo investigation under § 5-3-29. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

When such appeal is made, it is a de novo investigation for subject matter appealed. Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947), overruled on other grounds, Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981).

Trial in superior court of statutory appeals is had without reference to evidence introduced in former trial, and is a de novo investigation; when a case is on appeal, any amendment, whether in matter of form or substance, may be made which could have been made while case was in primary court. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).

Appeal of an application for a year's support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987).

Case appealed must be tried anew.

- It is not the province of superior court on such appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issue anew and pass original judgments on questions involved as if there had been no previous trial. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 183 et seq.

ALR.

- Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below, 11 A.L.R.2d 317.

Change of law after decision of lower court as affecting decision on appeal or error, 111 A.L.R. 1317; 151 A.L.R. 987.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative, 66 A.L.R.2d 659.

Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.

Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.

5-3-3. Persons by whom appeal may be entered generally; attorney's authority to appeal to be in writing; dismissal for failure to file; ratification of unauthorized appeal.

An appeal may be entered by the plaintiff or defendant in person, or by his attorney at law or in fact and, if by the latter, he must be authorized in writing, which authority shall be filed in the court in which the case is pending at the time the appeal is entered; but if it is shown to the court that the authority exists, the court may allow a reasonable time to file the same. Upon failure to so file, the appeal shall be dismissed and execution shall issue without further order. If the authority is not filed within the time allowed, a ratification of an unauthorized appeal, if made in writing and filed in the clerk's office before the next term of the court, shall render the appeal valid.

(Orig. Code 1863, § 3535; Code 1868, § 3558; Code 1873, § 3615; Code 1882, § 3615; Civil Code 1895, § 4457; Civil Code 1910, § 5002; Code 1933, § 6-104.)

JUDICIAL DECISIONS

Appeals without written authority.

- Former Civil Code 1895, § 4237 and 4457 (see O.C.G.A. § 15-19-5 and5-3-3, respectively) permitted attorneys at law to enter appeals without written authority. Friar v. Curry, Arrington & Co., 119 Ga. 908, 47 S.E. 206 (1904); Nathan v. Lamb, 18 Ga. App. 39, 88 S.E. 794 (1916).

Assessor's award in condemnation proceedings.

- Attorney at law for municipality may file appeal to assessor's award in condemnation proceedings. Potts v. City of Atlanta, 140 Ga. 431, 79 S.E. 110 (1913).

Attorneys in fact cannot enter appeals absent writing sufficiently establishing authority to do so. Lovelady v. Franklin Davis Nursery Co., 113 Ga. 324, 38 S.E. 748 (1901); Lovejoy v. Franklin Davis Nursery Co., 115 Ga. 714, 42 S.E. 151 (1902).

Agent created by parol cannot enter appeal. Cook v. Buchanan, 86 Ga. 760, 13 S.E. 83 (1891).

When written authority has been lost, appeal may be ratified. Booten v. Bank of Empire State, 67 Ga. 358 (1881).

Agent cannot show authority by ex parte affidavit. Bank of Empire State v. Booten, 52 Ga. 653 (1874).

Receiver cannot enter appeal unless receiver is party to proceedings. Dupree v. Drake, 94 Ga. 456, 19 S.E. 242 (1894).

Cited in McCoy v. Sasnett, 77 Ga. App. 819, 49 S.E.2d 913 (1948); State Hwy. Dep't v. Sumner, 102 Ga. App. 1, 115 S.E.2d 787 (1960); State Hwy. Dep't v. Hester, 112 Ga. App. 51, 143 S.E.2d 658 (1965); Schwindler v. State, 261 Ga. App. 30, 581 S.E.2d 619 (2003).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, § 325 et seq.

ALR.

- Right of trustee of express trust to appeal from order or decree not affecting his own personal interest, 6 A.L.R.2d 147.

Attorney's right to institute or maintain appeal where client refuses to do so, 91 A.L.R.2d 618.

5-3-4. Appeal by one of several plaintiffs or defendants - Authorization and procedure generally.

When there is more than one party plaintiff or defendant, and one or more of the parties plaintiff or defendant desire to appeal, and the others refuse or fail to appeal, the party plaintiff or defendant desiring to appeal may enter an appeal in the manner provided by law.

(Laws 1839, Cobb's 1851 Digest, p. 500; Code 1863, § 3539; Code 1868, § 3562; Code 1873, § 3619; Code 1882, § 3619; Civil Code 1895, § 4461; Civil Code 1910, § 5006; Code 1933, § 6-110; Ga. L. 1995, p. 10, § 5.)

JUDICIAL DECISIONS

Parties to appeal.

- Although only one of the coparties appeals, all of the coparties who have the same interests and rights are also a party to the appeal. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).

Right of all parties to prosecute or defend.

- All parties who are brought up on appeal, whether they have filed an appeal or not have the right to appear and prosecute or defend, whichever the case may be. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).

Section inapplicable to certiorari cases, but applies to appeals only. Winn v. Ingram, 3 Ga. App. 628, 60 S.E. 328 (1908).

Suits against several defendants jointly.

- Section inapplicable where several defendants jointly sued are discharged and remaining defendant held liable. It is otherwise if judgment below was rendered against all defendants. Patterson v. Barrow, 99 Ga. 166, 25 S.E. 398 (1896).

Defendant cannot enter appeal from only part of judgment. Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900).

Where nonappealing defendant dies between first and second trial.

- Where one of three defendants enters appeal under section, and one of other two dies, between first and second trial, he was a party to appeal, so far as to require his legal representative to be made a party to cause before it can proceed. Stell v. Glass, 1 Ga. 475 (1846).

Cited in Powell v. Perry, 63 Ga. 417 (1879); Metzer v. Steed, 132 Ga. 822, 65 S.E. 117 (1909); Marks v. Steinberg, 55 Ga. App. 561, 190 S.E. 808 (1937); Colley v. Dillon, 158 Ga. App. 416, 280 S.E.2d 425 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 237 et seq., 325 et seq.

ALR.

- May new trial or reversal for error as to measure of damages against one or more of the parties be restricted to those parties, 32 A.L.R. 255.

Right to perfect appeal, against party who has not appealed, by cross appeal filed after time for direct appeal has passed, 32 A.L.R.3d 1290.

5-3-5. Appeal by one of several plaintiffs or defendants - Effect of judgment on appeal generally; recovery of damages awarded upon appeal.

Upon the appeal of either party plaintiff or defendant, as provided in Code Section 5-3-4, the whole record shall be taken up and all shall be bound by the final judgment; but, in case damages are awarded upon such appeal, the damages shall only be recovered against the party appealing and his security, if any, and not against the party failing or refusing to appeal.

(Laws 1839, Cobb's 1851 Digest, p. 500; Code 1863, § 3540; Code 1868, § 3563; Code 1873, § 3620; Code 1882, § 3620; Civil Code 1895, § 4462; Civil Code 1910, § 5007; Code 1933, § 6-111.)

JUDICIAL DECISIONS

Whole record brought up.

- By former Civil Code 1895, §§ 4462 and 4469 (see O.C.G.A. §§ 5-3-5 and5-3-29), appeal brings up whole record, and a party not appealing can make amendments to a plea or answer already entered. Murray v. Marshall, 106 Ga. 522, 32 S.E. 634 (1899).

Appeal carries up whole record and judgment binds both appealing and nonappealing parties. Murray v. Marshall, 106 Ga. 522, 32 S.E. 634 (1899); Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900).

Two parties may file appeal jointly.

- When either party, without other joining, can appeal, and all be bound by final judgment, appeal will not be null and void simply because two of the parties filed appeal jointly. Marks v. Steinberg, 55 Ga. App. 561, 190 S.E. 808 (1937).

Section applies to appeals from decrees. Smith v. Cooper, 21 Ga. 359 (1857) (see now O.C.G.A. § 5-3-5).

Entry of appeal prevents issuance of execution against other party. Lewis v. Armstrong, 69 Ga. 752 (1882).

Appeal by maker of note from joint judgment of county against the maker and indorsers prevents execution against indorsers. Turnell v. Carter, 5 Ga. App. 847, 64 S.E. 114 (1909).

Right of all parties to prosecute or defend.

- All parties who are brought up on appeal, whether the parties have filed an appeal or not have the right to appear and prosecute or defend, whichever the case may be. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).

Decedent's non-party mother lacked standing to appeal.

- Notwithstanding a settlement agreement in which the decedent's wife released any interest in the decedent's estate, given that the decedent's mother was not a party in the probate court, despite publication of notice and service by the wife, the mother lacked standing to appeal the probate court's decision to award the wife a year's support. Booker v. Booker, 286 Ga. App. 6, 648 S.E.2d 445 (2007).

Cited in Powell v. Perry, 63 Ga. 447 (1879); Lewis & Co. v. Chisolm, 68 Ga. 40 (1881); Wheeler v. Layman Foundation, 188 Ga. 267, 3 S.E.2d 645 (1939); Hardwick v. Georgia Power Co., 100 Ga. App. 38, 110 S.E.2d 24 (1959); Colley v. Dillon, 158 Ga. App. 416, 280 S.E.2d 425 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, § 325 et seq.

ALR.

- May new trial or reversal for error as to measure of damages against one or more of the parties be restricted to those parties, 32 A.L.R. 255.

Power of legislature to require appellate court to review evidence, 33 A.L.R. 10.

Judgment or order dismissing action as against one defendant as subject of appeal or error before disposition of case as against codefendant, 114 A.L.R. 759.

Grant of new trial, or reversal of judgment on appeal as to one joint tortfeasor, as requiring new trial or reversal as to other tortfeasor, 143 A.L.R. 7.

5-3-6. Appeal by one of several plaintiffs or defendants - Liability and recourse of surety on judgment on appeal.

The security, if any, of the party appealing shall be bound for the judgment on the appeal; and, in case the security is compelled to pay off the debt or damages for which judgment is entered in the case, he shall have recourse only against the party for whom he became security.

(Laws 1823, Cobb's 1851 Digest, p. 498; Laws 1839, Cobb's 1851 Digest, p. 500; Code 1863, § 3541; Code 1868, § 3564; Code 1873, § 3621; Code 1882, § 3621; Civil Code 1895, § 4463; Civil Code 1910, § 5008; Code 1933, § 6-112.)

Law reviews.

- For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982).

JUDICIAL DECISIONS

First part of section provides for liability when principal appeals, whether or not surety appeals. Beall v. Cochran, 18 Ga. 38 (1855); Barnett v. Travis, 96 Ga. 760, 22 S.E. 314 (1895); National Sur. Co. v. White, 21 Ga. App. 471, 94 S.E. 589 (1917).

Second clause of section grants right of subrogation against principal. National Surety Co. v. White, 21 Ga. App. 471, 94 S.E. 589 (1917).

Charging estate of security.

- Plaintiff, by scire facias, may charge estate of security on appeal with amount of final judgment rendered against original party. Bank of Charleston v. Moore, 6 Ga. 416 (1849).

Plaintiff may charge estate of security with amount of judgment by entry of judgment nunc pro tunc. Mayo v. Kersey, 24 Ga. 167 (1858).

Surety not subject for breach of bond when trial cannot be had as to appellant.

- Condemnation money for which surety on appeal is liable is that which is recovered in case on appeal trial. If, by reason of injunction, death, or other cause, no trial of case is or can be had as to appellant, the surety is not subject for a breach of bond. Planters' & Miners' Bank v. Hudgins, 84 Ga. 108, 10 S.E. 501 (1889).

Cited in Satzky v. King, 115 Ga. 948, 42 S.E. 233 (1902); Bennett v. Farkas, 126 Ga. 228, 54 S.E. 942 (1906); Touchton v. Stewart, 222 Ga. 455, 150 S.E.2d 643 (1966).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 231 et seq.

ALR.

- Failure of sureties on appeal bond to justify after exception to their sufficiency and consequent dismissal of appeal, as releasing them from liability, 96 A.L.R. 1371.

Liability on supersedeas bond which was legally insufficient to effect stay, where enforcement of judgment was in fact suspended, 120 A.L.R. 1062.

Condition of bond on appeal not in terms covering payment of money judgment, as having that effect by implication or construction, 124 A.L.R. 501.

Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.

5-3-7. Appeal suspends judgment; effect of dismissal or withdrawal of appeal.

An appeal shall suspend but not vacate a judgment and, if dismissed or withdrawn, the rights of all the parties shall be the same as if no appeal had been entered.

(Orig. Code 1863, § 3549; Code 1868, § 3572; Code 1873, § 3628; Code 1882, § 3628; Civil Code 1895, § 4470; Civil Code 1910, § 5015; Code 1933, § 6-502.)

Cross references.

- Similar provisions regarding suspension of judgment by appeal, § 9-12-19.

JUDICIAL DECISIONS

Justice's court judgment remains operative, but incapable of enforcement pending appeal. Haygood v. King, 161 Ga. 732, 132 S.E. 62 (1926); Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Effect of statute is to preserve all incidents of judgment except right to enforce the judgment by sale of defendant's property pending appeal. Watkins v. Angier, 99 Ga. 519, 27 S.E. 718 (1896).

Dismissal of appeal by superior court for want of jurisdiction renders county court's judgment final. Johnson v. Ford, 92 Ga. 751, 19 S.E. 712 (1894).

Effect of dismissal of appeal to superior court from judgment of court of ordinary (now probate court) admitting will to probate was to make effective judgment of court of ordinary. Hooks v. Hooks, 197 Ga. 482, 29 S.E.2d 599 (1944).

Appellant cannot, without adverse party's consent, certify case back to inferior court.

- In appeal from inferior court, or assessors in condemnation proceeding, to superior court, the law contemplates that if judgment is obtained in superior court the prevailing party is entitled to superior court execution and aid of all processes of superior court to enforce the court's judgment. A dismissal of the entire case or proceedings with consent of court might be permissible under some circumstances, for this would be a final termination of the entire case or proceedings, but appellant cannot, at will and without consent of the adverse party, certify the case back to the inferior court, or to assessors, and relegate adverse party to processes of inferior court. Such would be the effect of allowing appellant to withdraw the appeal without consent of the adverse party contrary to provisions of former Code 1933, § 6-503 (see O.C.G.A. § 5-3-8). State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939).

Dismissal by appealing party.

- The appealing party cannot dismiss the appeal to the prejudice of his coparties, as their rights on appeal are equal to those of the party making the appeal. Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).

Distinction between dismissing case on appeal and dismissing appeal.

- Difference must be noted between dismissing case on appeal and dismissing an appeal. The first dismissal lets out whole case while second is an affirmance of judgment below and rights of all parties are same as if no appeal had been entered. Fagan v. McTier, 81 Ga. 73, 6 S.E. 177 (1888); State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939).

While appeal only suspends and does not vacate judgment allowing probate in solemn form, so that judgment may again become effective in event of dismissal of appeal, a dismissal of the case vitiates entire proceeding, leaving parties in same status as if no action was ever commenced to probate in solemn form. Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969).

Time period that lien of judgment is binding.

- Where on appeal from judgment in justice's court appellee is successful, lien of judgment will be taken as binding from date of its original rendition, and entitled to superiority over subsequently rendered judgment, notwithstanding provisions of § 9-12-88. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Where plaintiff, appellee, obtains judgment on appeal, such judgment, as to priority, is to be treated as being of date when judgment appealed from was entered, and accordingly it takes precedence over another judgment rendered by superior court, older than judgment on appeal, but younger than original judgment entered in justice's court. Watkins v. Angier, 99 Ga. 519, 27 S.E. 718 (1896).

Property bought by defendant before entry of judgment on justice's docket is bound by subsequent judgment in superior court. Dodd & Co. v. Glover, 102 Ga. 82, 29 S.E. 158 (1897).

Statute of limitations does not run while appeal is pending.

- Statute of limitations does not run in favor of plaintiff in error as to judgment in justice's court, and execution cannot be issued upon such judgment pending appeal in superior court. Twitty v. Bower, 84 Ga. 751, 11 S.E. 354 (1890).

Cited in Robinson v. Medlock, 59 Ga. 598 (1877); East Tenn., V. & Ga. R.R. v. Miles, 72 Ga. 252 (1884); Rasberry v. Harville, 90 Ga. 530, 16 S.E. 299 (1892); Reagan v. Powell, 125 Ga. 89, 53 S.E. 580 (1906); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); Nelson v. Smothers, 168 Ga. App. 120, 308 S.E.2d 239 (1983); Williamson v. Lucas, 78 Bankr. 372 (Bankr. M.D. Ga. 1987); Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 387 et seq., 543, 814.

C.J.S.

- 5 C.J.S., Appeal and Error, § 748 et seq.

ALR.

- First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 A.L.R. 1078; 118 A.L.R. 1286.

Judgment in tort action as subject of assignment, attachment, or garnishment pending appeal, 121 A.L.R. 420.

Running of limitations against proceeding to renew or revive judgment as affected by appeal or right of appeal from judgment, or by motion or right to move for new trial, 123 A.L.R. 565.

Liability of insurer under policy indemnifying against liability or loss as affected by 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, 125 A.L.R. 755.

Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between the original decree and the filing of the bill of review, 150 A.L.R. 676.

Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 A.L.R.2d 153.

Conviction from which appeal is pending as bar to another prosecution for same offense, 61 A.L.R.2d 1224.

Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.

5-3-8. Requirement of consent to withdrawal of appeal.

After an appeal has been entered, no person shall be allowed to withdraw the appeal without the consent of the adverse party.

(Laws 1799, Cobb's 1851 Digest, p. 495; Code 1863, § 3550; Code 1868, § 3573; Code 1873, § 3629; Code 1882, § 3629; Civil Code 1895, § 4471; Civil Code 1910, § 5016; Code 1933, § 6-503.)

JUDICIAL DECISIONS

Sole provision for dismissing appeal.

- This section, except for defects in proceedings, is only provision for dismissing appeal. Rousch v. Green, 2 Ga. App. 112, 58 S.E. 313 (1907).

Only provision for dismissal of appeal to superior court, except for defects in appeal proceedings, is found in this section, which provides that no person shall be allowed to withdraw an appeal after it shall be entered but by consent of adverse party. Rabun v. Planters Cotton Oil Co., 68 Ga. App. 37, 21 S.E.2d 922 (1942).

Dismissal of appeal without adverse party's consent.

- Under general law, an appeal is a de novo investigation, and it is error for the court to dismiss the appeal when there is no defect in appeal proceedings, and when the adverse party does not consent for appeal to be withdrawn or dismissed. Rose City Foods, Inc. v. Usry, 86 Ga. App. 307, 71 S.E.2d 649 (1952).

Certification of case back to inferior court.

- In appeal from inferior court, or assessors in condemnation proceeding, to superior court, the law contemplates that if judgment is obtained in superior court the prevailing party is entitled to a superior court execution and aid of all processes of superior court to enforce the court's judgment. A dismissal of the entire case or proceedings with consent of court might be permissible under some circumstances, for this would be a final termination of the entire case or proceedings, but appellant cannot, at will and without consent of adverse party, certify case back to inferior court, or to assessors, and relegate adverse party to processes of inferior court. Such would be the effect of allowing appellant to withdraw the appellant's appeal without consent of adverse party contrary to statutory provisions. State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939).

Attempted withdrawal of appeal by appellant, in vacation.

- Attempt by appellant to withdraw, in vacation, appeal from judgment of court of ordinary (now probate court) establishing a will, by entry on docket by clerk of court, is a nullity. Rasberry v. Harville, 90 Ga. 530, 16 S.E. 299 (1892).

Applicability to other provisions.

- Provisions of former Code 1933, § 6-503 (see O.C.G.A. § 5-3-8) were applicable to appeals in condemnation proceedings instituted under statute governing condemnation by state and national government and all others exercising right of eminent domain. State Hwy. Dep't v. Blalock, 98 Ga. App. 630, 106 S.E.2d 552 (1958).

Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Robison v. Medlock, 59 Ga. 598 (1877); Ellis v. O'Neal, 175 Ga. 652, 165 S.E. 751 (1932); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); State Hwy. Dep't v. Thomas, 122 Ga. App. 252, 176 S.E.2d 635 (1970); Pilgrim v. Brookfield West, Inc., 136 Ga. App. 619, 222 S.E.2d 137 (1975).

RESEARCH REFERENCES

ALR.

- First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 A.L.R. 1078; 118 A.L.R. 1286.

Public interest as ground for refusal to dismiss an appeal, where question has become moot, or dismissal is sought by one or both parties, 132 A.L.R. 1185.

ARTICLE 2 PROCEDURE

5-3-20. Time for filing appeals.

  1. Appeals to the superior court shall be filed within 30 days of the date the judgment, order, or decision complained of was entered.
  2. The date of entry of an order, judgment, or other decision shall be the date upon which it was filed in the court, agency, or other tribunal rendering same, duly signed by the judge or other official thereof.
  3. This Code section shall apply to all appeals to the superior court, any other law to the contrary notwithstanding.

(Orig. Code 1863, § 3533; Code 1868, § 3556; Code 1873, § 3613; Code 1882, § 3613; Civil Code 1895, § 4455; Civil Code 1910, § 5000; Code 1933, § 6-102; Ga. L. 1972, p. 738, § 1.)

History of section.

- This Code section is derived from the decision in State v. Dean, 9 Ga. 405 (1851).

Law reviews.

- For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).

JUDICIAL DECISIONS

Section is not a statute of limitation but is jurisdictional.

- Requirement of O.C.G.A. § 5-3-20 that appeals to superior court must be filed "within 30 days of the date the judgment, order, or decision complained of was entered" is not a statute of limitation but is jurisdictional in nature. Rowell v. Parker, 192 Ga. App. 215, 384 S.E.2d 396 (1989).

Section applied liberally in sustaining appeals.

- Very liberal rule has uniformly been recognized in sustaining appeals when party appealing has shown bona fide intention to do so within the four days (now 30 days) allowed by statute. Bank of Empire State v. Booton, 52 Ga. 653 (1874).

Appeal cannot, except by consent or parties, be entered until after judgment in court of ordinary (now probate court). Wright v. Clark, 139 Ga. 34, 76 S.E. 565 (1912); Bates v. Weaver, 145 Ga. 241, 88 S.E. 986 (1916).

Motion to amend judgment does not extend time to file.

- Appeal from a motion to amend judgment of a probate court is not a final judgment and, thus, is not an appealable decision within the meaning of O.C.G.A. § 5-3-2(a). Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of subsection (a) of O.C.G.A. § 5-3-20. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Executrix's appeal from a probate court's decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and5-3-20, the executrix should have appealed within 30 days of a final order discharging the executrix and ordering that the executrix return a certain amount to the estate. In re Estate of Thomas, 285 Ga. App. 615, 647 S.E.2d 326 (2007).

Claim was time-barred.

- Owner's failure to appeal the rezoning of a neighbor's property precluded the owner from attacking the rezoning decision under Spaulding County, Ga., Unified Development Ordinance § 418 and O.C.G.A. § 5-3-20; a claim that Spaulding County, Ga., Unified Development Ordinance § 414 did not comply with the Georgia Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., was also time-barred, as any challenge to the rezoning had to be raised within 30 days. Hollberg v. Spalding County, 281 Ga. App. 768, 637 S.E.2d 163 (2006).

Property owners' claims against a county, the county's board of commissioners, and the county's officials were time-barred because, although the owners appeared and objected throughout a zoning process, the owners failed to file an appeal within 30 days of the zoning resolution that formed the basis of the owners' complaint as required by O.C.G.A. § 5-3-20(a). Instead, the owners waited nearly three years to file a new action, asserting that the owners were entitled to do so because the actions of the zoning board were void. The owners could not be permitted to do indirectly that which the law did not allow to be done directly. Fortson v. Tucker, 307 Ga. App. 694, 705 S.E.2d 895 (2011).

Summary judgment in favor of the county was affirmed because the action was filed more than 30 days after the letter was signed; thus, the trial court correctly determined that the action was untimely under O.C.G.A. § 5-3-20. The letter constituted a zoning decision by the county. Mortgage Alliance Corp. v. Pickens County, 316 Ga. App. 755, 730 S.E.2d 471 (2012).

Jurisdiction of court in county without more than 100,000 persons.

- Probate court of county that did not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the county probate court, would not serve to extend the time for filing a notice of appeal under either O.C.G.A. § 5-3-20 or O.C.G.A. § 5-6-38(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Rooker-Feldman Doctrine.

- Rooker-Feldman barred a property owner's 42 U.S.C. § 1983 claim that the owner had a grandfathered constitutional right to rent a vacation home on a short-term basis that predated enactment of a county regulation; in order for the claim to succeed, it would have been necessary for the court of appeals to conclude that a state court in an earlier case wrongly decided that any constitutional challenge to application of the regulation was barred as untimely. May v. Morgan Cnty. Ga., 878 F.3d 1001 (11th Cir. 2017).

Appeal from magistrate court.

- Magistrate courts are not courts of record with the power to grant new trials; thus, a motion for a new trial in the magistrate court did not toll the time for filing an appeal to state or superior court. Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994).

Newly discovered evidence when party negligently failed to enter timely appeal.

- When party did not enter appeal within time prescribed and has otherwise been guilty of negligence, a new trial will not be granted on account of newly discovered evidence. Miller v. Mitchell, Reid & Co., 38 Ga. 312 (1868).

Former Code 1933, § 6-102 (see O.C.G.A. § 5-3-20) did not extend time for filing notice of appeal specified in Ga. L. 1957, p. 387, § 14 (see O.C.G.A. § 22-2-112). City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975).

Denial of request for rezoning.

- The signing of the initial document reducing to writing county commission's decision denying a request to rezone a piece of property commenced the running of the clock under this section. Where the chairman of the board of commissioners executed the written minutes of the meeting in which the request was denied on March 25, 1986, the 30-day period for the filing of an appeal began to run on that day, although official notice of the denial was not received in the mail until May 22, 1986. Chadwick v. Gwinnett County, 257 Ga. 59, 354 S.E.2d 420 (1987).

Effect of filing in wrong court.

- Where a notice of appeal from a probate court decision is filed in a timely fashion, the superior court is vested with discretion in determining whether to dismiss the appeal. If the superior court finds that the filing of the notice of appeal in superior court has caused an unreasonable as well as inexcusable delay in the transmission of the record from the probate court, the appeal should be dismissed. Otherwise, the superior court is authorized to retain the appeal. In that event, the superior court has ample authority under § 5-3-27 to enter an order directing that the probate court transmit the record to the superior court so that the appeal can be decided. Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981).

Municipal court judgment.

- When the defendant was convicted in a municipal court that was not a city court or court of record and, thus, did not have authority to grant new trials, the defendant's motion for a new trial did not toll the 30-day time limit for filing appeals. City of Lawrenceville v. Davis, 233 Ga. App. 1, 502 S.E.2d 794 (1998).

County letter was not a "decision".

- Letter from a county to a developer advising that proposals would be considered under an amended ordinance limiting the development of private sewer systems was not a "decision" of the county for purposes of triggering the 30-day period to appeal under O.C.G.A. § 5-3-20; therefore, the developer's claim of inverse condemnation never ripened. Mortgage Alliance Corp. v. Pickens County, 294 Ga. 212, 751 S.E.2d 51 (2013).

Appeal from action of county commissioners.

- Action for a declaratory judgment that a vote of a board of county commissioners resulted in the denial of a rezoning application was improperly dismissed as untimely because the trial court erroneously treated the judgment as an appeal of a zoning decision. Head v. DeKalb County, 246 Ga. App. 756, 542 S.E.2d 176 (2000).

Cited in Ansley v. Barlow, 103 Ga. 107, 29 S.E. 596 (1897); Wood v. McCrary, 107 Ga. 345, 33 S.E. 395 (1899); Knox v. Crump, 15 Ga. App. 697, 84 S.E. 169 (1915); Holston Box & Lumber Co. v. Holcomb, 30 Ga. App. 651, 118 S.E. 577 (1923); Hughes v. State Bd. of Medical Exmrs., 162 Ga. 246, 134 S.E. 42 (1926); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Weatherford v. Weatherford, 114 Ga. App. 223, 150 S.E.2d 713 (1966); Burson v. Foster, 123 Ga. App. 168, 179 S.E.2d 678 (1971); Pope v. Wolfe, 128 Ga. App. 226, 196 S.E.2d 412 (1973); Irby v. Christian, 130 Ga. App. 375, 203 S.E.2d 284 (1973); State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796, 219 S.E.2d 1 (1975); King v. King, 137 Ga. App. 251, 223 S.E.2d 752 (1976); City of Atlanta v. International Soc'y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977); Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Chambers v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 340 S.E.2d 922 (1986); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986); Cooper v. State, 342 Ga. App. 351, 801 S.E.2d 589 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. 2018), cert. denied, 138 S. Ct. 2039, 2018 U.S. LEXIS 3176, 201 L. Ed. 2d 288 (U.S. 2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 252 et seq.

ALR.

- Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted, 10 A.L.R.2d 1075.

Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other re-examination, as affecting time in which to apply for appellate review, 148 A.L.R. 795.

Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482.

Retroactive effect on appeal from judgment previously entered of statute shortening time allowed for appellate review, 81 A.L.R.2d 417.

Right to perfect appeal, against party who has not appealed, by cross appeal filed after time for direct appeal has passed, 32 A.L.R.3d 1290.

Defendant's appeal from plea conviction as affected by prosecutor's failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal, 86 A.L.R.3d 1262.

5-3-21. Notice of appeal; form; service.

(a) An appeal to the superior court may be taken by filing a notice of appeal with the court, agency, or other tribunal appealed from. No particular form shall be necessary for the notice of appeal, but the following is suggested: (NAME OF INFERIOR JUDICATORY) STATE OF GEORGIA ________________________ ) ) v. ) (Case number ) designation) ) ________________________ ) APPEAL TO SUPERIOR COURT Notice is hereby given that __________________, appellant herein, and __________________________, above-named, hereby appeals to the Superior (plaintiff, defendant, etc.) Court of ______________ County from the judgment (or order, decision, etc.) entered herein on (date) , . Dated: ________________________. _____________________________________________________________________ Attorney For Appellant _____________________________________________________________________ Address

A copy of the notice of appeal shall be served on all parties in the same manner prescribed by Code Section 5-6-32. Failure to perfect service on any party shall not work dismissal, but the superior court shall grant continuances and enter such other orders as may be necessary to permit a just and expeditious determination of the appeal.

(Orig. Code 1863, § 3534; Code 1868, § 3557; Ga. L. 1868, p. 131, § 2; Code 1873, § 3614; Code 1882, § 3614; Civil Code 1895, § 4456; Civil Code 1910, § 5001; Code 1933, § 6-103; Ga. L. 1972, p. 738, § 3; Ga. L. 1999, p. 81, § 5.)

JUDICIAL DECISIONS

Authority for appeals.

- O.C.G.A. § 5-3-21 does not constitute an enabling act that authorizes appeals from any court, agency, or tribunal, and any authority for appeals to superior court must be found in other Code sections. Southern States Landfill, Inc. v. City of Atlanta Bd. of Zoning Adjustments, 261 Ga. 759, 410 S.E.2d 721 (1991).

Notice is absolute jurisdictional requirement.

- Proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. Cooper v. Gwinnett County Bd. of Educ., 157 Ga. App. 289, 277 S.E.2d 285 (1981); Elbert County Bd. of Educ. v. Gurley, 215 Ga. App. 205, 450 S.E.2d 258 (1994).

Supersedeas bond not notice of appeal.

- While a notice of appeal serves as supersedeas unless a bond is ordered by the court, a supersedeas bond is not, of itself, a notice of appeal. A bond may be required for security as a prerequisite to bringing an appeal but the bond does not, itself, commence the appeal. Sharpe v. State, 198 Ga. App. 381, 401 S.E.2d 586 (1991).

Effect of filing in wrong court.

- When a notice of appeal from a probate court decision is filed in a timely fashion, the superior court is vested with discretion in determining whether to dismiss the appeal. If the superior court finds that the filing of the notice of appeal in superior court has caused an unreasonable as well as inexcusable delay in the transmission of the record from the probate court, the appeal should be dismissed. Otherwise, the superior court is authorized to retain the appeal. In that event, the superior court has ample authority under O.C.G.A. § 5-3-27 to enter an order directing that the probate court transmit the record to the superior court so that the appeal can be decided. Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981).

Appeal from decision rendered by local school board.

- When no notice of appeal from a decision rendered by a local school board was filed with the State Board of Education but, instead, appellant filed an appeal directly in the superior court, proper appellate procedure was not followed. Therefore, the superior court did not have jurisdiction to review the decision sought to be appealed. Cooper v. Gwinnett County Bd. of Educ., 157 Ga. App. 289, 277 S.E.2d 285 (1981); Elbert County Bd. of Educ. v. Gurley, 215 Ga. App. 205, 450 S.E.2d 258 (1994).

Cited in Lane v. Douglas, 128 Ga. App. 231, 196 S.E.2d 368 (1973); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review § 292 et seq. 14 Am. Jur. 2d, Certiorari, § 49 et seq.

2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 68.

ALR.

- Sufficiency of "designation" under Federal Appellate Procedure Rule 3(c) of judgment or order appealed from in civil cases by notice of appeal not specifically designating such judgment or order, 141 A.L.R. Fed 445.

5-3-22. Payment of costs prerequisite to appeal; affidavit of indigence; dismissal for nonpayment following court order; supersedeas bond.

  1. No appeal shall be heard in the superior or state court until any costs which have accrued in the court, agency, or tribunal below have been paid unless the appellant files with the superior or state court or with the court, agency, or tribunal appealed from an affidavit stating that because of indigence he or she is unable to pay the costs on appeal. In all cases, no appeal shall be dismissed in the superior or state court because of nonpayment of the costs below until the appellant has been directed by the court to do so and has failed to comply with the court's direction.
  2. Filing of the notice of appeal and payment of costs or filing of an affidavit as provided in subsection (a) of this Code section shall act as supersedeas, and it shall not be necessary that a supersedeas bond be filed; provided, however, that the superior or state court upon motion may at any time require that supersedeas bond with good security be given in such amount as the court may deem necessary unless the appellant files with the court an affidavit stating that because of indigence he or she is unable to give bond.

(Laws 1799, Cobb's 1851 Digest, p. 494; Code 1863, § 3536; Code 1868, § 3559; Code 1873, § 3616; Code 1882, § 3616; Civil Code 1895, § 4458; Civil Code 1910, § 5003; Code 1933, § 6-105; Ga. L. 1972, p. 738, § 4; Ga. L. 1995, p. 10, § 5; Ga. L. 2009, p. 647, § 1/HB 324.)

JUDICIAL DECISIONS

General Consideration

Purpose of payment.

- Payments of costs in order to carry appeal is primarily intended to protect court officers. Hilderbrand v. Housing Auth., 109 Ga. App. 297, 136 S.E.2d 24 (1964).

Former Civil Code 1895, § 4464 (see O.C.G.A. § 5-3-24) formed an exception to former Civil Code 1895, § 4458 (see O.C.G.A. § 5-3-22). Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900).

Cited in Planters' & Miners' Bank v. Hudgins, 84 Ga. 108, 10 S.E. 501 (1889); Lewis, Leonard & Co. v. Maulden, 93 Ga. 758, 21 S.E. 147 (1894); Chapple v. Tucker, 110 Ga. 467, 35 S.E. 643 (1900); Deiter v. Ragsdale, 120 Ga. 417, 47 S.E. 942 (1904); Hays v. Eubanks, 125 Ga. 349, 54 S.E. 174 (1906); Roberts v. Napier Bros., 126 Ga. 693, 55 S.E. 914 (1906); Potts v. City of Atlanta, 140 Ga. 431, 79 S.E. 110 (1913); Whitson v. McNutt & Co., 26 Ga. App. 281, 105 S.E. 861 (1921); Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317, 119 S.E. 25 (1923); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Trowbridge v. Dominy, 92 Ga. App. 177, 88 S.E.2d 161 (1955); Kendrix v. Superior Egg Co., 99 Ga. App. 575, 109 S.E.2d 59 (1959); Smith v. Huckabee Properties, Inc., 111 Ga. App. 451, 142 S.E.2d 320 (1965); Taylor v. Public Convalescent Serv., 245 Ga. 805, 267 S.E.2d 242 (1980); Hawn v. Chastain, 154 Ga. App. 609, 269 S.E.2d 50 (1980).

Costs

Costs within meaning of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22) include all costs accruing in case up to entry of appeal. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935).

Failure of clerk to exact costs when the clerk had recorded appeal will not operate as dismissal. Crawford v. Cate, 20 Ga. 69 (1856); Lyner v. Jackson, 20 Ga. 773 (1856); Fain v. Fain, 179 Ga. App. 285, 346 S.E.2d 96 (1986).

"Direct" means to give an order or command, not merely to advise or notify. Therefore, when the appellant was notified by the probate court of the obligation to pay court costs, but was not directed to pay costs by the court, the appellant's appeal should not have been dismissed for nonpayment of costs. Fain v. Fain, 179 Ga. App. 285, 346 S.E.2d 96 (1986).

Successful appellant cannot secure a refund of costs. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

When an appeal is withdrawn, judgment may be entered for costs but not amount due on execution. Bryan v. Simpson, 92 Ga. 307, 18 S.E. 547 (1893).

In a dispossessory proceeding, because the case did not involve the tenant's failure to pay costs in the magistrate court, and, instead, involved the tenant's failure either to pay the filing fee owed in superior court or file an affidavit of poverty in that court, O.C.G.A. § 5-3-22 provided no basis for affirming the trial court's order denying the tenant's application to proceed in forma pauperis. Freeman v. The Park at Hairston Apartments, 341 Ga. App. 321, 800 S.E.2d 21 (2017).

Supersedeas Bond

Supersedeas bond not notice of appeal.

- While a notice of appeal serves as supersedeas unless a bond is ordered by the court, a supersedeas bond is not, of itself, a notice of appeal. A bond may be required for security as a prerequisite to bringing an appeal but the bond does not, itself, commence the appeal. Sharpe v. State, 198 Ga. App. 381, 401 S.E.2d 586 (1991).

Failure to file supersedeas bond is no ground for dismissing appeal. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Failure to file supersedeas bond is no ground for dismissing appeal, even when the superior court finds such failure is willful. Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

Effect of failure to file supersedeas bond.

- Failure to file supersedeas bond simply means that judgment of trial court may be enforced. Thornton v. Burson, 151 Ga. App. 456, 260 S.E.2d 388 (1979).

Intent of General Assembly that appeals not be dismissed for failure to post supersedeas bonds is clearly shown by subsection (a), which expressly authorizes dismissal of an appeal for nonpayment of costs accrued in a lower tribunal after the appellant has been directed by superior court to pay such costs. Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

No authorization for dismissal for failure to file supersedeas bond.

- Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(b) not authorize dismissal of an appeal to superior court for failure to comply with order requiring supersedeas bond pursuant to subsection (b) of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22). Hawn v. Chastain, 246 Ga. 723, 273 S.E.2d 135 (1980).

Dispossessory actions.

- Subsection (b) of O.C.G.A. § 5-3-22 is applicable to appeals relating to dispossessory actions. Walker v. Crane, 216 Ga. App. 765, 455 S.E.2d 855 (1995).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 421, 583, 851. 14 Am. Jur. 2d, Certiorari, § 53 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 427 et seq., 535.

ALR.

- Liability of surety in appeal bond where there was no supersedeas for costs in court below, 12 A.L.R. 721.

Validity of judgment entered on appeal or supersedeas bond without previous notice and opportunity to be heard, 86 A.L.R. 308.

Amount named in appeal or supersedeas bond as the maximum limit of sureties' liability or as a limitation of the amount which they undertake shall be paid on the judgment appealed from, 87 A.L.R. 257.

Liability on supersedeas bond which was legally insufficient to effect stay, where enforcement of judgment was in fact suspended, 120 A.L.R. 1062.

Condition of bond on appeal not in terms covering payment of money judgment, as having that effect by implication or construction, 124 A.L.R. 501.

Supersedeas stay, or bail upon appeal in habeas corpus, 143 A.L.R. 1354.

When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.

Attorneys' fees paid by appellee in resisting unsuccessful appellate review as damages recoverable on appeal bond, 37 A.L.R.2d 525.

Necessity that person acting in fiduciary or representative capacity give bond to maintain appellate review proceedings, 41 A.L.R.2d 1324.

Check or money as meeting requirement of appeal bond, 65 A.L.R.2d 1134.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

5-3-23. Signature on bond of attorney at law or in fact.

If an appeal is entered by the attorney at law or in fact, he may sign the name of the principal to the appeal bond, if required, and the principal shall be bound thereby as though he had signed it himself.

(Orig. Code 1863, § 3537; Code 1868, § 3560; Code 1873, § 3617; Code 1882, § 3617; Civil Code 1895, § 4459; Civil Code 1910, § 5004; Code 1933, § 6-107.)

JUDICIAL DECISIONS

Cited in McCoy v. Sasnett, 77 Ga. App. 819, 49 S.E.2d 913 (1948); Ganns v. Worrell, 216 Ga. 512, 117 S.E.2d 533 (1960); National Bank v. Little, 115 Ga. App. 327, 154 S.E.2d 624 (1967).

RESEARCH REFERENCES

2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 261.

5-3-24. Exemption of executors, administrators, and trustees from paying costs and giving bond.

Executors, administrators, and other trustees, when defending an action as such or defending solely the title of the estate, may enter an appeal without paying costs and giving bond and security as required by Code Section 5-3-22; but, if a judgment should be obtained against such executor, administrator, or other trustee and not the assets of the estate, he must pay costs and give security as in other cases.

(Laws 1799, Cobb's 1851 Digest, p. 495; Code 1863, § 3542; Code 1868, § 3565; Code 1873, § 3622; Code 1882, § 3622; Civil Code 1895, § 4464; Civil Code 1910, § 5009; Code 1933, § 6-113.)

Editor's notes.

- The operation of this Code section is confined to appeals from courts other than the probate courts. See Hobbs v. Cody, 45 Ga. 478 (1872); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935), and Wever v. Wever, 183 Ga. 453, 188 S.E. 706 (1936).

JUDICIAL DECISIONS

Suit against person as administrator gives the administrator the right to appeal without giving security. Irving v. Melton, 27 Ga. 330 (1859).

One sued in capacity of administrator need not give security as a prerequisite to appeal provided judgment is to affect only assets of decedent. McCay v. Devers, 9 Ga. 184 (1850).

When judgment rendered binds administrator personally, an appeal cannot be entered under provisions of this section. Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900); Webb v. Webb, 24 Ga. App. 464, 101 S.E. 200 (1919).

Administrator appealing from citation for settlement must pay costs.

- In citation of administrator or other trustee for settlement in court of ordinary (now probate court), a personal judgment is intended, and when such judgment is rendered, against administrator or other trustee, in order to appeal the administrator must either pay costs or make a pauper affidavit required by law; the administrator cannot appeal as administrator or other trustee without paying costs under this section. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936).

Section inapplicable to citation proceedings by distributee against administrator. Hickman v. Hickman, 74 Ga. 401 (1884); Webb v. Webb, 24 Ga. App. 464, 101 S.E. 200 (1919).

Section inapplicable to annual ex parte return of administrator. Adams v. Beall, 60 Ga. 325 (1878).

Administrator, whose surety has become insolvent pending appeal, need not furnish additional security. Latimer Whiting & Co. v. Administrators of Ware, 2 Ga. 272 (1847).

When judgment amended to charge defendant individually.

- When judgment de bonis testatoris was rendered by justice, and defendant, on same day, entered appeal without giving security, and subsequently judgment was amended by justice, so as to charge the defendant individually, appeal should not be dismissed because entered without appellant's giving bond and security. Cannon v. Sheffield, 59 Ga. 103 (1877).

Defective pauper affidavit filed in appeal by trustee.

- Appeal by trustee from judgment against estate shall not be dismissed because the defective pauper affidavit was filed. Sawyer v. Cheney, 59 Ga. 368 (1877).

Clerk's failure to exact costs does not affect appeal.

- If clerk receives appeal from administrator without exacting costs, appeal is good; for clerk, as to all concerned, except appellant, is estopped from saying that the appellant has not received costs. Crawford v. Cate, 20 Ga. 69 (1856).

Cited in Ford v. Redfearn, 145 Ga. 498, 89 S.E. 611 (1916); Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935); Wever v. Wever, 183 Ga. 453, 188 S.E. 706 (1936).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 849 et seq.

C.J.S.

- 4 C.J.S., Appeal and Error, § 531 et seq.

ALR.

- Right of executor or administrator to contest, or appeal from, court's rejection of claim against decedent's estate, 129 A.L.R. 922.

5-3-25. Appeal by partners or joint contractors; signature on bond; appeal by corporation.

When several partners or joint contractors bring or defend an action as such, any one of the partners or joint contractors may enter an appeal in the name of the firm or joint contractors and sign the name of the firm or joint contractors to a bond if required by the superior court, which shall be binding on the firm and the joint contractors as though they had signed it themselves. In the case of corporations, the appeal may be entered by the president or any agent thereof managing the case or by the attorney of record.

(Laws 1838, Cobb's 1851 Digest, p. 589; Code 1863, § 3538; Code 1868, § 3561; Code 1873, § 3618; Code 1882, § 3618; Civil Code 1895, § 4460; Civil Code 1910, § 5005; Code 1933, § 6-108.)

JUDICIAL DECISIONS

Last sentence of section provides for appeals by corporations. Crumm v. Allen & Co., 11 Ga. App. 203, 75 S.E. 108 (1912).

Description term not attached to name.

- Dismissal is proper when appeal entered by one without descriptive term attached to one's name. Holston Box & Lumber Co. v. Holcomb, 30 Ga. App. 651, 118 S.E. 577 (1923).

Requirements of other statute are not as strict.

- Requirements of former Civil Code 1895, §§ 4639, 4640, and 4641 (see O.C.G.A. § 5-4-5), as to those who may sign a certiorari bond on behalf of a corporation are not as strict as provisions of former Civil Code 1985, § 4460 (see O.C.G.A. § 5-3-25). New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 60 S.E. 828 (1908).

Cited in King Hdwe. Co. v. Bowden, 113 Ga. 924, 39 S.E. 404 (1901).

RESEARCH REFERENCES

C.J.S.

- 4 C.J.S., Appeal and Error, § 325 et seq.

ALR.

- Survival of liability on joint obligation, 67 A.L.R. 608.

5-3-26. Requirement of written defenses in appeal from justice of the peace court; right to amend pleadings.

Reserved. Repealed by Ga. L. 1983, p. 884, § 4-2, effective July 1, 1983.

Editor's notes.

- This Code section was based on Ga. L. 1884-85, p. 97, § 1; Civil Code 1895, § 4139; Civil Code 1910, § 4739; Code 1933, § 6-303.

5-3-27. Amendments to cure defects.

No appeal shall be dismissed because of any defect in the notice of appeal, bond, or affidavit of indigence or because of the failure of the lower court, agency, or other tribunal to transmit the pleadings or other record; but the superior court shall at any time permit such amendments and enter such orders as may be necessary to cure the defect.

(Code 1933, § 6-115, enacted by Ga. L. 1972, p. 738, § 5.)

JUDICIAL DECISIONS

Technicalities should not be determinative.

- People's right to litigate with governmental bodies should not be decided on technicalities any more than one citizen's right to litigate with another citizen. City of Atlanta v. International Soc'y for Krishna Consciousness of Atlanta, Inc., 240 Ga. 96, 239 S.E.2d 515 (1977).

Effect of filing in wrong court.

- When a notice of appeal from a probate court decision is filed in a timely fashion, the superior court is vested with discretion in determining whether to dismiss the appeal. If the superior court finds that the filing of the notice of appeal in superior court has caused an unreasonable as well as inexcusable delay in the transmission of the record from the probate court, the appeal should be dismissed. Otherwise, the superior court is authorized to retain the appeal. In that event, the superior court has ample authority to enter an order directing that the probate court transmit the record to the superior court so that the appeal can be decided. Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981).

Filing an independent suit, rather than a notice of appeal in the lower tribunal, was sufficient to vest the superior court with jurisdiction to decide an appeal from an adverse decision of the mayor and city council, and the superior court was bound to make the determination whether the procedural irregularity caused unreasonable or inexcusable delay. Hanson v. Wilson, 257 Ga. 5, 354 S.E.2d 126 (1987).

Appeal from city court to superior court correctly dismissed.

- Superior court correctly dismissed defendant's appeal from the city court to the superior court, because such appeal from the city court erroneously taken to the superior court to be transferred to the appellate court was not authorized by O.C.G.A. § 5-3-27. Sawyer v. City of Atlanta, 257 Ga. App. 324, 571 S.E.2d 146 (2002).

Cited in Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121 (1974); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978); Zornes v. State, 262 Ga. 757, 426 S.E.2d 355 (1993); Adams v. State, 234 Ga. App. 696, 507 S.E.2d 538 (1998); Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 264, 307, 341, 915.

C.J.S.

- 4 C.J.S., Appeal and Error, §§ 415, 470, 600, 737.

5-3-28. Transmittal of record and transcripts to superior court; issuance of orders and writs.

  1. Within ten days of the filing of the notice of appeal, it shall be the duty of the judge or other official of the court, agency, or tribunal appealed from to cause a true copy of the pleadings, if any, and all other parts of the record (and transcript of evidence and proceedings, where the appeal is not de novo) to be transmitted to the superior court.
  2. The superior court may issue such orders and writs as may be necessary in aid of its jurisdiction on appeal.

(Code 1933, § 6-114, enacted by Ga. L. 1972, p. 738, § 5.)

Cross references.

- Appeals - probate court transcript not transmitted, Uniform Rules for the Probate Courts, Rule 9.3.

JUDICIAL DECISIONS

Meaning of "pleadings."

- In a de novo proceeding, reference to "pleadings" generally refers to entire record sent up to superior court from lower tribunal and not only to appellant's petition for appeal. Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978).

Cited in Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981); Mack v. Demming, 248 Ga. 117, 281 S.E.2d 591 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 467 et seq.

5-3-29. De novo investigation.

An appeal to the superior court in any case where not otherwise provided by law is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.

(Orig. Code 1863, § 3548; Code 1868, § 3571; Code 1873, § 3627; Code 1882, § 3627; Civil Code 1895, § 4469; Civil Code 1910, § 5014; Code 1933, § 6-501; Ga. L. 1972, p. 738, § 8; Ga. L. 1983, p. 884, § 3-1; Ga. L. 1986, p. 982, § 2.)

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

Law reviews.

- For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).

JUDICIAL DECISIONS

General Consideration

All parties are brought up under this section whether the parties have appealed or not. Whether the parties have appealed or not the parties all have the right to appear and prosecute or defend as the case may be. Hanie v. Taylor, 4 Ga. App. 545, 61 S.E. 1054 (1908); Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986).

Jury trial in superior court where factual issues involved.

- An appeal is a de novo investigation, and in the superior court the appellant cannot be deprived of the right of trial by jury if questions of fact are involved. Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213, 119 S.E. 644 (1923).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

O.C.G.A. § 5-3-29 provides that on appeal from a probate court all competent evidence shall be admissible in the trial de novo in the superior court and the whole record shall be brought up from below. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 554 (1983).

Appeal of the magistrate court judgment to the superior court is a de novo investigation. Long v. Greenwood Homes, Inc., 285 Ga. 560, 679 S.E.2d 712 (2009).

Appeal from judgment allowing or refusing homestead.

- When appeal is taken from judgment of ordinary, (now judge of probate court) in allowing or refusing homestead, whole case is brought up by appeal. Lynch v. Pace, 40 Ga. 173 (1869); Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 (1871).

Same rule applies in attachment. J. W. McGarrity & Co. v. Thomas, 9 Ga. App. 606, 71 S.E. 948 (1911).

Case on appeal from court of ordinary (now probate court) must be tried anew, as if no trial had been had. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123, 50 L. Ed. 2d 114 (1976).

Hearing required unless waived.

- Although the Superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety's decision to revoke the driver's license of an aggrieved party if the parties waive their right to be heard, the superior court cannot avoid the dictates of O.C.G.A. §§ 5-3-29 and9-10-2 by simply failing to hold a hearing. Bowman v. Parrot, 200 Ga. App. 405, 408 S.E.2d 115, cert. denied, 200 Ga. App. 895, 408 S.E.2d 115 (1991).

Superior court not to review rulings of probate court.

- It is not province of superior court on appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issues anew and pass original judgments on questions involved as if there had been no previous trial. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123, 50 L. Ed. 2d 114 (1976).

Superior court erred in setting aside the year's support award for failure to provide evidence of an amount sufficient to constitute a year's support because the only issue properly before the court on appeal under O.C.G.A. § 5-3-29 was whether an objection had been made to the petitioner's petition for year's support. Because the superior court found that no objection had been made to the petition for year's support, the court erred in placing the burden of proof to show the amount sufficient for year's support upon the petitioner. The language of O.C.G.A. § 53-3-7(c) indicates that the petitioner shouldered that burden of proof only once an objection is made. Garren v. Garren, 316 Ga. App. 646, 730 S.E.2d 123 (2012).

Distinction between statutory appeal on merits and appeal by writ of error.

- Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies the result to the trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).

On appeal, it is action and not judgment that is examined. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

Appeal under former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2) placed the matter in the superior court for a de novo investigation under former Code 1933, § 6-501 (see O.C.G.A. § 5-3-29). Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

Relinquishment of de novo appeal to court of appeals.

- Defendant, by moving to dismiss the defendant's de novo appeal from a probate court to a superior court for failure to hold a timely trial under O.C.G.A. § 5-3-29, voluntarily relinquished his right to a de novo appeal to the court of appeals, and the defendant's conviction and sentence imposed by the probate court were, therefore, reinstated. Bailey v. State, 184 Ga. App. 890, 363 S.E.2d 172 (1987).

Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Roberts v. Summers, 47 Ga. 434 (1872); In re Moseley, 17 F. Cas. 886 (S.D. Ga. 1873); Powell v. Perry, 63 Ga. 417 (1879); Fagan v. McTier, 81 Ga. 73, 6 S.E. 177 (1888); Brodhead v. Shoemaker, 44 F. 518, 111 L.R.A. 567 (N.D. Ga. 1890); Freeman v. Carr & Bro., 104 Ga. 718, 30 S.E. 935 (1898); Bryson v. Scott, 111 Ga. 196, 36 S.E. 619 (1900); Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908); Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 76 S.E. 387, 1914A Ann. Cas. 880 (1912); Willingham v. Buckeye Cotton Oil Co., 13 Ga. App. 253, 79 S.E. 496 (1913); Byers v. Byers, 41 Ga. App. 671, 154 S.E. 456 (1930); Hill v. Hill, 55 Ga. App. 500, 190 S.E. 411 (1937); State Hwy. Bd. v. Long, 61 Ga. App. 173, 6 S.E.2d 130 (1939); Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942); Rabun v. Planters Cotton Oil Co., 68 Ga. App. 37, 21 S.E.2d 922 (1942); Allen v. Allen, 71 Ga. App. 272, 30 S.E.2d 665 (1944); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947); Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Roe v. Pitts, 82 Ga. App. 770, 62 S.E.2d 387 (1950); Oxford v. Farr, 98 Ga. App. 776, 106 S.E.2d 911 (1958); McCray v. First Nat'l Bank, 103 Ga. App. 506, 120 S.E.2d 26 (1961); Brumbelow v. Brumbelow, 111 Ga. App. 665, 142 S.E.2d 855 (1965); Ingram v. Rooks, 221 Ga. 701, 146 S.E.2d 743 (1966); Undercofler v. White, 113 Ga. App. 853, 149 S.E.2d 845 (1966); Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969); Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974); Edge v. Edge, 134 Ga. App. 162, 213 S.E.2d 540 (1975); Ledford v. Farrow, 134 Ga. App. 591, 215 S.E.2d 344 (1975); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37, 227 S.E.2d 865 (1976); Carter v. Carter, 139 Ga. App. 548, 228 S.E.2d 708 (1976); McKnight v. Mitchell, 142 Ga. App. 344, 235 S.E.2d 763 (1977); City of Smyrna v. Ruff, 240 Ga. 250, 240 S.E.2d 19 (1977); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 248 S.E.2d 196 (1978); Hunter v. Hunter, 149 Ga. App. 324, 254 S.E.2d 477 (1979); Rawlins v. Rawlins, 150 Ga. App. 534, 258 S.E.2d 187 (1979); Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981); Smith v. Smith, 165 Ga. App. 532, 301 S.E.2d 696 (1983); Gay v. Farley, 255 Ga. 174, 336 S.E.2d 235 (1985); General Accident Ins. Co. v. Wells, 179 Ga. App. 440, 346 S.E.2d 886 (1986); Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988); Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991); Barmore v. Himebaugh, 200 Ga. App. 868, 410 S.E.2d 46 (1991); Hooper v. Taylor, 230 Ga. App. 128, 495 S.E.2d 594 (1998); Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000); Giles v. Vastakis, 262 Ga. App. 483, 585 S.E.2d 905 (2003); Candies v. Hulsey, 277 Ga. 630, 593 S.E.2d 353 (2004); Jessup v. Ray, 311 Ga. App. 523, 716 S.E.2d 583 (2011); Target Nat'l Bank v. Luffman, 324 Ga. App. 442, 750 S.E.2d 750 (2013); Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201 (2014).

Effect of Appeal on Inferior Court's Judgment

Judgment appealed from and opposite judgment in superior court might both be free of error.

- It is quite obvious that, with such latitude as to evidence as is given by this section, the judgment appealed from and a directly opposite judgment in appellate court, might both be free from error - each of them might be absolutely correct on the facts submitted, and the law applicable thereto. Abrams v. Lang, Sons, 60 Ga. 218 (1878).

Appeal from court of ordinary (now probate court) suspends, but does not vacate judgment. Snell v. Lopez, 91 Ga. App. 552, 86 S.E.2d 363 (1955).

No waiver of right to trial by jury.

- Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30, the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow's request. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Justice's court judgment remains operative, but incapable of enforcement pending appeal. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Judgment against joint defendant is suspended pending appeal of nonsuit.

- As to other joint defendant when the maker and endorser of a promissory note are jointly sued and judgment rendered against the endorser and nonsuit as to maker, judgment against an endorser is suspended until rendition of the case on appeal. Turnell v. Carter, 5 Ga. App. 847, 64 S.E. 114 (1909).

When appellee is successful on appeal, lien of judgment is binding from date originally rendered.

- When on appeal from judgment in justice's court appellee is successful, lien of judgment will be taken as binding from date of the judgment's original rendition, and entitled to superiority over subsequently rendered judgment, notwithstanding provisions of former Code 1933, § 110-508 (see O.C.G.A. § 9-12-88). Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).

Appeal from a decision of a magistrate court is "a de novo investigation," in which the magistrate court's decision on the merits of the claim has no bearing. Howe v. Roberts, 259 Ga. 617, 385 S.E.2d 276 (1989).

Scope of Appeal

On appeal, either party is entitled to be heard on whole merits of case. Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123, 50 L. Ed. 2d 114 (1976).

Duty of superior court upon overruling objections to petition.

- If judge of superior court overrules demurrer (now motion to dismiss) and objections to petition to set aside judgment of court of ordinary (now probate court) it is the judge's duty to try issues made by such petition and defensive pleadings. Hall v. First Nat'l Bank, 85 Ga. App. 498, 69 S.E.2d 679 (1952).

Appeal imparts same jurisdiction as was possessed by inferior court.

- When a guardian seeks compensation for unsuccessful effort by the guardian, as attorney at law and in apparent good faith, to have order of court of ordinary (now probate court) granting encroachment upon estates of the guardian's wards modified, set aside, or vacated, the superior court on de novo appeal is vested with same discretion in matter that court of ordinary had. Whitehurst v. Singletary, 77 Ga. App. 811, 50 S.E.2d 80 (1948).

Superior court, on appeal from court of ordinary, (now probate court) has no broader jurisdiction than that of court of ordinary. Snell v. Lopez, 91 Ga. App. 552, 86 S.E.2d 363 (1955).

Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).

Rulings of inferior court as to law and facts may be adjudicated de novo on appeal. Garrison v. McGuire, 114 Ga. App. 665, 152 S.E.2d 624 (1966).

Issues allowable on appeal.

- Any issue that may be made before tribunal originally hearing case may be made on appeal thereof to superior court when such appeal is a de novo investigation. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949).

Evidence which may be introduced.

- Appeal to superior court from probate court is a de novo investigation, and competent evidence may be heard which was not introduced in probate court. Dukes v. Joyner, 234 Ga. 526, 216 S.E.2d 822 (1975).

Purpose of O.C.G.A. § 5-3-29 is to provide the parties to an appeal a de novo hearing, and "all competent evidence" may be introduced in the superior court regardless of whether it was submitted below. Lee v. Wainwright, 256 Ga. 478, 350 S.E.2d 238 (1986).

An appeal from the magistrate court was a de novo proceeding in which either party could adduce evidence additional to that originally presented in the magistrate court. Stamps v. Nelson, 290 Ga. App. 277, 659 S.E.2d 697 (2008).

Restriction on presentation of new matters on appeal.

- While an appeal to the superior court from the probate court is a de novo investigation, the trial in the superior court is not a trial without limitation but is a new trial in which only the matter presented to the court below can be relitigated. Williams v. Calloway, 171 Ga. App. 286, 319 S.E.2d 500 (1984).

Suit on appeal is subject to attacks upon jurisdiction which could have been made below.

- In case pending in superior court on appeal from judgment of justice of peace, defendant may plead any defense, including plea to jurisdiction of justice's court, which the defendant could have pled in that court, irrespective of whether, upon trial of case therein, this defense was pled. Smith v. Atlanta Mut. Ins. Co., 42 Ga. App. 254, 155 S.E. 535 (1930).

Since appeal from court of ordinary (now probate court) to superior court is a de novo proceeding, any defense or attack upon jurisdiction which could have been made in the court of ordinary can be made in superior court on appeal. Cromer v. Chambers, 104 Ga. App. 196, 121 S.E.2d 397 (1961).

Superior court may hear and sustain demurrer (now motion to dismiss) previously heard and overruled in county court. Bowman v. Bowman, 79 Ga. App. 240, 53 S.E.2d 244 (1949).

Application of section to appeal from dismissal by probate court for want of jurisdiction.

- See Touchton v. Stewart, 222 Ga. 455, 150 S.E.2d 643 (1966).

Striking defendant on appeal discharges defendant from any liability in cause of action.

- As hearing is de novo, striking defendant on appeal against whom judgment was rendered in justice's court operates to discharge such defendant from any liability in cause of action. Hanie v. Taylor, 4 Ga. App. 545, 61 S.E. 1054 (1908).

City charter provision permitting appeals from tax assessments to superior court.

- When city charter provides that a tax assessment may be appealed from taxing authorities of city to superior court, there to be disposed of as other appeal cases, such appeal is a de novo investigation and brings up the whole record, to be tried anew in superior court. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949).

Procedural Issues

Generally, same procedural rules apply in de novo review as in trials of other civil cases. Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981).

Defendant, though not joining in appeal, may make any timely and appropriate amendments to plea or answer already entered. Murray v. Marshall, 106 Ga. 522, 32 S.E. 634 (1899).

No greater duty is placed upon appellant to bring case to trial than upon appellee. While it is true that appellant is the moving party as far as appeal is concerned, once appeal and supporting record is docketed in superior court, it is entitled to de novo treatment. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).

Appeal must include certified judgment or record.

- When there is no certified judgment or record before the superior court as to judgment rendered by appeals board, appeal to superior court is incomplete. Fletcher v. Daniels, 211 Ga. 403, 86 S.E.2d 232 (1955).

Failure of magistrate to send up judgment rendered by the magistrate is no ground for dismissal. Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 (1881).

Absence of party.

- Appeal, unlike an action, should not be dismissed because of absence of either party. Rousch v. Green, 2 Ga. App. 112, 58 S.E. 313 (1907).

Judgment on merits of affidavit of illegality does not preclude motion to dismiss affidavit on appeal.

- That plaintiff in fi. fa. went to trial in justice's court on merits of affidavit of illegality, where judgment was rendered against illegality, did not preclude plaintiff in fi. fa. from making motion to dismiss affidavit of illegality on call of case in superior court, to which defendant had appealed. Norris v. Carter & Nelson, 32 Ga. App. 607, 124 S.E. 144 (1924).

Party may invoke summary judgment procedure in appeal to superior court.

- An appeal to superior court from court of ordinary (now probate court) is subject to established procedures for civil actions, thus entitling a party to invoke summary judgment procedure. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968).

Evidence of additional damages in trial de novo.

- When plaintiff appealed to the state court from a magistrate court's decision dismissing the plaintiff's claim and awarding damages to the defendant on the defendant's counterclaim, and the plaintiff had notice of additional damages since the original counterclaim, the defendant could present evidence of additional damages of less than $5,000 relating to the defendant's counterclaim, without formal amendment of the defendant's pleadings. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19, 477 S.E.2d 141 (1996).

It is not reversible error to allow jury to know outcome in inferior court. Kelley v. Kelley, 129 Ga. App. 257, 199 S.E.2d 399 (1973).

Letting jury know what judgment was rendered below will not render the jury's verdict void, although it is not a proper practice. Humphrey v. Johnson, 143 Ga. 703, 85 S.E. 830 (1915).

Summary judgment improperly granted to siblings on statute of limitations bar issue.

- Trial court erred in granting summary judgment to the siblings on the basis that the challenging sister's claim against the estate seeking an accounting was time-barred because a question of fact remained as to whether the sister was on notice that they had claimed any estate property adversely to the sister; thus, a jury had to decide whether the 10-year bar of O.C.G.A. § 9-3-27(2) began to run before that time. In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214 (2015).

Reliance by jury upon record below in reaching the jury's decision.

- Jury in superior court proceeding does not review and affirm or reverse rulings of probate judge, but hears all issues anew as if there had been no previous trial, and if the jury relies upon record below or allows the judgment below to influence the jury's decision, reversible error is committed. Allmond v. Johnson, 153 Ga. App. 59, 264 S.E.2d 544 (1980).

Summary judgment available in appeal from probate court's award for support.

- Appeal of an application for a year's support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987).

Issues never raised on appeal.

- Upon a wife's request for year's support, because a son never presented argument or evidence to contest the amount sought by the wife, never sought a hearing on the amount, and failed to rebut the wife's claim of entitlement to that support, the son's claims of error on appeal from an order granting the wife summary judgment in the superior court lacked merit. In re Estate of Avery, 281 Ga. App. 904, 637 S.E.2d 504 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Justices of the Peace, §§ 50, 51.

C.J.S.

- 5 C.J.S., Appeal and Error, § 886 et seq.

ALR.

- Review on appeal of evidence as to genuineness of disputed documents, 6 A.L.R. 507; 12 A.L.R. 212; 27 A.L.R. 319.

May new trial or reversal for error as to measure of damages against one or more of the parties be restricted to those parties, 32 A.L.R. 255.

First decision of intermediate court as law of the case on appeal to court of last resort from subsequent decision, 41 A.L.R. 1078; 118 A.L.R. 1286.

Evidence erroneously stricken out as proper for consideration by appellate court to sustain finding or verdict, 152 A.L.R. 371.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.

5-3-30. Calendaring appeal; waiver of trial by jury; monetary limitations inapplicable.

  1. Upon the filing of an appeal from magistrate court to superior court or state court, the appeal shall be placed upon the court's next calendar for nonjury trial. Such appeals from the magistrate court to superior court or state court shall be tried by the superior court or state court without a jury unless either party files a demand for a jury trial within 30 days of the filing of the appeal or the court orders a jury trial.
  2. Upon filing an appeal pursuant to subsection (a) of this Code section, the monetary limitations provided for in paragraph (5) of Code Section 15-10-2 shall no longer apply to any verdict and judgment entered by the superior or state court.

(Laws 1805, Cobb's 1851 Digest, p. 183; Laws 1823, Cobb's 1851 Digest, p. 497; Code 1863, § 3551; Code 1868, § 3574; Code 1873, § 3630; Code 1882, § 3630; Civil Code 1895, § 4472; Civil Code 1910, § 5017; Code 1933, § 6-601; Ga. L. 1988, p. 253, § 1; Ga. L. 1998, p. 552, § 1; Ga. L. 2001, p. 1223, § 1.)

Editor's notes.

- Ga. L. 1998, p. 552, § 2, not codified by the General Assembly, provides that the 1998 amendment to this Code section is applicable to appeals filed on or after July 1, 1998.

Cross references.

- Juries, T. 15, C. 12.

Law reviews.

- For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

JUDICIAL DECISIONS

Language of section is obligatory.

- Language of section is obligatory, especially where it concerns and affects public interest as well as interest of appellant and failure to comply, unless excusable, will result in dismissal. Huber v. State, 140 Ga. App. 148, 230 S.E.2d 105 (1976).

No waiver of right to trial by jury.

- Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30, the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow's request. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Constitutional right to jury trial in dispossessory actions.

- Where the appellants had sought a jury trial in a local magistrate court on the issue of possession in a landlord-tenant dispute, the appellee denied the appellants' request, the appellants filed a writ of prohibition against the appellee in the superior court, and the superior court denied the appellants' writ and issued a certificate of immediate review to the Supreme Court of Georgia, the magistrate court did not err in denying the appellants a jury trial, since the right to jury trial on appeal is expressly given in this Code section, and the appellants are not being denied a jury trial, but instead, only endure a procedural delay in the magistrate court before receiving a jury trial on appeal to the state or superior court. Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989).

Control of calendars and trial of cases are procedures in hands of court, not counsel. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).

No greater duty is placed upon appellant than upon appellee to bring case to trial. Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).

If court does not reach case during first term after entry, neither party is penalized.

- It being express command of this section that appeal cases be tried by jury at first term after appeal has been entered, it would appear duty of clerk to place same upon trial calendar for first term after docketing. If it cannot be reached at that term, or should court otherwise defer the matter, neither party should be penalized because it has not been reached. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).

Jury is required on trial of appeals from county court to superior court. Johnson v. Ford, 92 Ga. 751, 19 S.E. 712 (1894).

Jury is to be taken from panels of traverse jurors and not from grand juries. Cronan v. Roberts & Co., 65 Ga. 678 (1880).

Jury trial in guardianship proceedings.

- The legitimate public interest in an incapacitated adult's welfare, coupled with statutory scheme requiring a jury trial in appeals to the superior court from the probate court, compelled the conclusion that a jury trial was required in guardianship proceeding. In re Boles, 172 Ga. App. 111, 322 S.E.2d 319 (1984).

Judge may direct verdict for defendant where demanded by evidence. Callaway & Truitt v. Southern Ry., 126 Ga. 192, 55 S.E. 22 (1906).

Letting jury know what judgment was rendered below will not render its verdict void, although it is not a proper practice. Humphrey v. Johnson, 143 Ga. 703, 85 S.E. 830 (1915).

Cited in Montgomery v. Fouche, 125 Ga. 43, 53 S.E. 767 (1906); Culver v. Pierce, 148 Ga. 300, 96 S.E. 497 (1918); Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213, 119 S.E. 644 (1923); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); United States v. Raines, 189 F. Supp. 121 (M.D. Ga. 1960); Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968); Bell v. Cronic, 248 Ga. 457, 283 S.E.2d 476 (1981); Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988); Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991); Davis v. Hawkins, 238 Ga. App. 749, 521 S.E.2d 10 (1999).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Justices of the Peace, § 448 et seq.

5-3-31. Damages assessed for frivolous appeals.

If upon the trial of any appeal it shall appear to the jury that the appeal was frivolous and intended for delay only, they shall assess damages against the appellant and his security, if any, in favor of the appellee for such delay, not exceeding 25 percent on the principal sum which they shall find due, which damages shall be specially noted in their verdict.

(Laws 1799, Cobb's 1851 Digest, p. 495; Code 1863, § 3552; Code 1868, § 3575; Ga. L. 1868, p. 132, § 2; Code 1873, § 3631; Code 1882, § 3631; Civil Code 1895, § 4473; Civil Code 1910, § 5018; Code 1933, § 6-602; Ga. L. 1983, p. 884, § 3-2.)

JUDICIAL DECISIONS

General Consideration

Purpose of section.

- Purpose of this section is to inflict punishment and to compensate respondent for delay, costs, and vexation caused by frivolous appeal. Garrison v. Wilcoxson, 11 Ga. 154 (1852); Adams v. Carnes, 111 Ga. 505, 36 S.E. 597 (1900); Hardy v. Truitt, 20 Ga. App. 529, 93 S.E. 149 (1917).

Exclusivity of remedy.

- O.C.G.A. § 5-3-31 does not provide the exclusive remedy for imposition of sanctions for appeals to the superior court; the statute applies only to cases of appeal wherein the jury returns a verdict for a sum of money. Osofsky v. Board of Mayor & Comm'rs, 237 Ga. App. 404, 515 S.E.2d 413 (1998).

To justify assessment of damages, appeal must be both frivolous and intended for delay. Gunnels v. Deavours, 57 Ga. 177 (1876).

When appeal deemed for purpose of delay.

- Appeal is intended to delay only when entirely without merit and entered merely to postpone creditor in collection of debt. Clark v. Fee, 86 Ga. 9, 12 S.E. 181 (1890).

Appellant's failure to submit evidence, by itself, is not conclusive of issue of intent to delay. Gilmore v. Wright, 20 Ga. 198 (1856).

In determining whether appeal is frivolous and intended to delay, the jury must consider all evidence. Garrison v. Wilcoxson, 11 Ga. 154 (1852).

Cited in Tommey & Stewart v. Finney, 45 Ga. 155 (1872); Robinson v. Medlock, 59 Ga. 598 (1877).

Assessment of Damages

For determination by jury.

- Amount of damages (under subsection (a)) is for determination by jury, uninfluenced by opinion of court. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 (1858).

Appropriate considerations in determining damages under section.

- See McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 (1858).

Maximum award only in extreme cases.

- Only in extreme cases should 25 percent maximum damages be awarded. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 (1858).

Application

O.C.G.A. § 5-3-31 applies only to appeals which are de novo investigations. Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637, 331 S.E.2d 46 (1985).

Section applicable only to cases when money verdicts are rendered.

- Inasmuch as provisions of section are necessarily applicable to those cases only in which money verdicts are rendered, the judgment cannot be enforced in claim cases. Adams v. Carnes, 111 Ga. 505, 36 S.E. 597 (1900).

Section applicable to appeal by garnishee. Davis v. Rhodes, 112 Ga. 106, 37 S.E. 169 (1900).

Section not applicable to appeal of Workers' Compensation Board decisions.

- Provisions of O.C.G.A. § 5-3-31 providing for the award of attorney's fees against a party bringing a frivolous appeal do not apply to appeals to the superior court of decisions of the Workers' Compensation Board pursuant to O.C.G.A. § 34-9-105. Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637, 331 S.E.2d 46 (1985).

Appeal presenting bona fide contest or seeking ruling on open or doubtful question.

- If, after reviewing the whole matter the court believes that the plaintiff in error is presenting a bona fide contest over a colorable matter, though the plaintiff's view of the law may not in fact be well founded, or that the plaintiff is seeking a ruling upon an open or doubtful question, damages will be refused. United States Fid. & Guar. Co. v. Blankenship Plumbing Co., 153 Ga. App. 335, 265 S.E.2d 66 (1980).

Property alienated pending appeal is bound for payment of damages for frivolous appeal just as it is for payment of the rest of the amount of appeal judgment. Phillips v. Behn & Foster, 19 Ga. 298 (1856).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 891, 892.

C.J.S.

- 5 C.J.S., Appeal and Error, § 754.

ALR.

- Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661.

CHAPTER 4 CERTIORARI TO SUPERIOR COURT

Cross references.

- Exercise of judicial power, Ga. Const. 1983, Art. VI, Sec. I, Para. IV.

Procedure for appeals from decisions of superior court reviewing decisions of lower courts by certiorari, § 5-6-35.

Description of extent of authority of superior court to exercise appellate jurisdiction and to exercise general supervision over all inferior tribunals, § 15-6-8.

JUDICIAL DECISIONS

Includable grounds.

- For certiorari, petition must set forth all of grounds asserted as error but may include only those grounds that were insisted upon at trial or hearing. Further, when it does not appear from the record that those issues were made in the trial court, the issues can not be raised by certiorari in the superior court, or reviewed in the Court of Appeals. Willis v. Jackson, 148 Ga. App. 432, 251 S.E.2d 341 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 1 et seq.

C.J.S.

- 14 C.J.S., Certiorari, § 1 et seq.

ALR.

- Payment of fine, serving sentence, or discharge on habeas corpus, as waiver of right to review conviction, 18 A.L.R. 867; 74 A.L.R. 638.

5-4-1. When certiorari shall lie; exception.

  1. The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers, including the judge of the probate court, except in cases touching the probate of wills, granting letters testamentary, and of administration.
  2. Notwithstanding subsection (a) of this Code section, the writ of certiorari shall not lie in civil cases in the probate courts which are provided for by Article 6 of Chapter 9 of Title 15.

(Orig. Code 1863, § 3957; Code 1868, § 3977; Code 1873, § 4049; Code 1882, § 4049; Civil Code 1895, § 4634; Civil Code 1910, § 5180; Code 1933, § 19-101; Ga. L. 1986, p. 982, § 3.)

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

Law reviews.

- For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code 1882, § 4157j; former Civil Code 1895, § 4149; former Civil Code 1910, § 4749; and former Code 1933, § 19-204 are included in the annotations for this Code section.

Section provides for review of decisions in exercise of judicial powers.

- Certiorari is a remedy whereby a litigant may have review of judgment or decision of inferior judicatory or a person exercising judicial powers. Richardson v. Rector, 134 Ga. App. 116, 213 S.E.2d 488 (1975).

Legislative intent.

- It was the intention of the framers of the Constitution, and of the legislature, to provide writ of certiorari to superior courts to all persons dissatisfied with judgments of inferior judicatories and who desire to have those judgments corrected by the superior court. Cochran v. City of Rockmart, 242 Ga. 732, 251 S.E.2d 259 (1978).

Right of certiorari is a constitutional right. Wrenn v. Bowden, 56 Ga. App. 713, 193 S.E. 456 (1937).

Constitutional as well as a statutory remedy. The legislature has provided by general law the manner and means for carrying out Ga. Const. 1976, Art. VI, Sec. IV, Para. V (see Ga. Const. 1983, Art. VI, Sec. I, Para. IV). Cochran v. City of Rockmart, 242 Ga. 732, 251 S.E.2d 259 (1978).

Constitutional limitation on legislature's power to provide for superior court review.

- Only power and authority given by the Georgia Constitution to superior courts to correct errors in inferior courts, is by writ of certiorari. The legislature has no power to provide other means than those prescribed in the Georgia Constitution for correcting errors in inferior courts by superior courts. Cochran v. City of Rockmart, 242 Ga. 732, 251 S.E.2d 259 (1978).

Relationship to other laws.

- Plaintiff's action seeking to set aside a reprimand from defendant city employer via writ of certiorari was remanded to state court because the cause of action was a uniquely state remedy for writ of certiorari to the state court, the resolution of which could turn on a conclusion that the conduct in question was in violation of federal law; the fact that the state court may look to federal law to determine whether to grant the relief sought by plaintiff did not confer subject matter jurisdiction on the federal court. Lockette v. City of Albany, F. Supp. 2d (M.D. Ga. Aug. 11, 2005).

Federal district court did not err in concluding that university professor's procedural due process claim was actionable under 42 U.S.C. § 1983 because the district court reached the plausible conclusion that the state courts may have summarily dismissed the professor's mandamus request without considering the merits thereof; while a writ of certiorari was not available to the professor upon the state court's determination that the termination proceedings were purely administrative, the professor was still entitled to seek a writ of mandamus. Laskar v. Peterson, 771 F.3d 1291 (11th Cir. 2014).

When errors complained of are sufficient to authorize certiorari, it should not be refused.

- When errors complained of in petition for certiorari were sufficient in law to have authorized the judge to have sanctioned certiorari under former Code 1868, §§ 3977 and 3980 (see O.C.G.A. §§ 5-4-1 and5-4-3), it was error to refuse to do so. McCardle v. Fogarty, 41 Ga. 626 (1871).

If there is specific remedy by certiorari, remedy of mandamus does not exist. Hayes v. Brown, 205 Ga. 234, 52 S.E.2d 862 (1949).

Writ of certiorari as full and adequate remedy at law.

- Writ of certiorari ordinarily furnishes a full and adequate remedy at law for correction of errors in decisions by municipal corporations, courts, or councils, rendered in exercise of judicial powers; so that even though a property right may be primarily involved in such manner as would authorize an injured party to resort to equity, the injured party is not entitled to claim such relief, when the injured party has already appeared before municipal judicatory, and that body has rendered an adverse decision. Ballard v. Mayor of Carrollton, 194 Ga. 489, 22 S.E.2d 81 (1942); Wilson v. Latham, 227 Ga. 530, 181 S.E.2d 830, cert. denied, 404 U.S. 955, 92 S. Ct. 312, 30 L. Ed. 2d 272 (1971); Wallace v. Board of Regents of Univ. Sys. of Ga., 967 F. Supp. 1287 (S.D. Ga. 1997).

Payment of fine imposed by inferior court generally precludes certiorari.

- Defendant who has paid fine imposed by police court, with alternative of imprisonment, cannot, after paying such fine, prosecute writ of error to review judgment, unless fine was paid under protest and under duress. Ellett v. City of College Park, 135 Ga. App. 269, 217 S.E.2d 374 (1975).

Writ of certiorari from justice's court lies only after final determination of case.

- Writ of certiorari does not lie from decision of justice of peace, in case pending in justice's court, until after final determination of case in which decision was made. Felker v. Freeman, 46 Ga. App. 767, 169 S.E. 247 (1933).

Judgment of justice of peace refusing to allow amendment to petition is not final determination. Felker v. Freeman, 46 Ga. App. 767, 169 S.E. 247 (1933).

Review of recorder's court decisions.

- Proper method for obtaining review of a decision of a recorder's court is either by direct appeal to the superior court, in the case of traffic violations, or by application for certiorari to the superior court. Franklin v. Recorder's Court, 174 Ga. App. 498, 330 S.E.2d 429 (1985).

The proper procedure for appealing decisions from a county recorder's court is by certiorari to the superior court. Smith v. Gwinnett County, 246 Ga. App. 865, 542 S.E.2d 616 (2000).

Review limited to record of hearing below.

- Review under O.C.G.A. § 5-4-1 is limited to matters raised in the record of the hearing below. Baxter v. Fulton-DeKalb Hosp. Auth., 764 F. Supp. 1510 (N.D. Ga. 1991).

Certiorari available irrespective of questions or amount involved.

- After verdict has been rendered by jury in justice's court, certiorari is available to party dissatisfied, in all cases, irrespective of character of questions involved or amount in controversy. Brown & Bigelow v. Parian Paint Co., 4 Ga. App. 632, 62 S.E. 95 (1908) (decided under former Civil Code 1895, § 4149).

Verdict, not judgment, is reviewed on certiorari. Western & A.R.R. v. Carson, 70 Ga. 388 (1883) (decided under former Code 1882, § 4157j).

Certiorari will not lie where appeal to jury in superior court has been entered. Miller v. Hensley, 65 Ga. 556 (1880) (decided under former Ga. L. 1878-79, p. 142, § 1); Boroughs v. White & Stone, 69 Ga. 841 (1883); Neal v. Fox, 114 Ga. 164, 39 S.E. 860 (1901) (decided under former Code 1882, § 4157j);(decided under former Civil Code 1895, § 4149).

Certiorari may be refused when evidence supports verdict. Stewart v. Murray, 14 Ga. App. 438, 81 S.E. 382 (1914) (decided under former Civil Code 1910, § 4749).

Certiorari may be refused although preponderance of evidence may be in favor of defendant. Mitchell v. Bennett, 17 Ga. App. 657, 87 S.E. 1092 (1916) (decided under former Civil Code 1910, § 4749).

Answer must show that verdict was rendered. Southern Ry. v. Chestnut Mt. Merchandise Co., 1 Ga. App. 731, 58 S.E. 247 (1907) (decided under former Civil Code 1895, § 4149).

Answer's failure to show that verdict was rendered will result in dismissal. Manning v. Mayor of Gainesville, 125 Ga. 239, 53 S.E. 1002 (1906) (decided under former Civil Code 1895, § 4149).

Voluntary dismissal of request for certiorari.

- Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss the petitioners' first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1, relying on the renewal statute codified at O.C.G.A. § 9-2-61(a), and file a second request after the 30-day limitation period expired. Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008).

Petition subject to renewal.

- Trial court properly denied the city's motion to dismiss the landowner's renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135, 789 S.E.2d 386 (2016).

Firefighter did not have right to writ of certiorari.

- Because the firefighter did not have a hearing, the firefighter was correct that the firefighter did not have a right to a writ of certiorari, O.C.G.A. § 5-4-1(a); however, pursuant to Georgia law, when no other specific legal remedy was available and a party had a clear right to have a certain act performed, a party could seek mandamus, O.C.G.A. § 9-6-20. Under Georgia law, this procedure could be used to compel a governmental body to act in compliance with the law, for instance to require a governmental board to hold a hearing as provided by law. East v. Clayton County, F.3d (11th Cir. Aug. 1, 2011)(Unpublished).

Review of tenant's housing assistance by writ of certiorari.

- Because a decision of a hearing officer of a local housing authority terminating a tenant's housing assistance under Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f, did not bear the third essential indicia of a quasi-judicial decision - that it be final, binding, and conclusive of the rights of the interested parties - no writ of certiorari would lie for review of the hearing officer's decision in superior court under O.C.G.A. § 5-4-1. Hous. Auth. of Augusta v. Gould, 305 Ga. 545, 826 S.E.2d 107 (2019).

Cited in Johnston v. Brenau College-Conservatory, 146 Ga. 182, 91 S.E. 85 (1916); Daniels v. Commissioners of Pilotage, 147 Ga. 295, 93 S.E. 887 (1917); Von Schmidt v. Noland Co., 176 Ga. 784, 169 S.E. 11 (1933); McDonald v. Georgia Fed'n of Labor, 178 Ga. 313, 173 S.E. 662 (1933); Gullatt v. Slaton, 189 Ga. 758, 8 S.E.2d 47 (1940); Butler v. City of Dublin, 191 Ga. 551, 13 S.E.2d 362 (1941); City of Atlanta v. Lopert Pictures Corp., 217 Ga. 432, 122 S.E.2d 916 (1961); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Manning v. A.A.B. Corp., 223 Ga. 111, 153 S.E.2d 561 (1967); Freeman v. City of Valdosta, 119 Ga. App. 345, 167 S.E.2d 170 (1969); Sonesta Int'l Hotels Corp. v. Colony Square Co., 482 F.2d 281 (5th Cir. 1973); McClung v. Richardson, 232 Ga. 530, 207 S.E.2d 472 (1974); Shantha v. Municipal Court, 240 Ga. 280, 240 S.E.2d 32 (1977); Housworth v. Glisson, 485 F. Supp. 29 (N.D. Ga. 1978); Mulling v. Wilson, 245 Ga. 773, 267 S.E.2d 212 (1980); Board of Trustees v. Christy, 154 Ga. App. 488, 269 S.E.2d 33 (1980); Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985); Lee v. Hutson, 810 F.2d 1030 (11th Cir. 1987); Hunter v. City of Warner Robins, 842 F. Supp. 1460 (M.D. Ga. 1994); Focus Entm't Int'l, Inc. v. Bailey, 256 Ga. App. 283, 568 S.E.2d 183 (2002); Macon-Bibb County Planning & Zoning Comm'n v. Epic Midstream, LLC, 349 Ga. App. 568, 826 S.E.2d 403 (2019); Amazing Amusements Group, Inc. v. Wilson, 353 Ga. App. 256, 835 S.E.2d 781 (2019); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

Decisions Subject to Review by Certiorari

Availability generally.

- Writ of certiorari to the superior court is a constitutional as well as statutory remedy available when a party is dissatisfied with a decision or judgment of an inferior judicatory exercising judicial or quasi-judicial powers. Flacker v. Berr-Nash Corp., 157 Ga. App. 638, 278 S.E.2d 180 (1981), overruled on other grounds, Smith v. Elder, 174 Ga. App. 316, 329 S.E.2d 511 (1985), overruled on other grounds as stated in, Norris v. Henry County, 255 Ga. App. 718, 566 S.E.2d 428 (2002).

Function of writ of certiorari is to review erroneous verdict or judgment. Gilbert v. Land Estates, Inc., 62 Ga. App. 845, 9 S.E.2d 914 (1940).

Certiorari lies to correct judgments which are irregular or erroneous. Sawyer v. City of Blakely, 2 Ga. App. 159, 58 S.E. 399 (1907); McDonald v. Farmers Supply Co., 143 Ga. 552, 85 S.E. 861 (1915).

Judgments which are wholly void.

- Certiorari does not lie as to judgments which are wholly void. Sawyer v. City of Blakely, 2 Ga. App. 159, 58 S.E. 399 (1907); McDonald v. Farmers Supply Co., 143 Ga. 552, 85 S.E. 861 (1915).

Writ of certiorari does not lie to set aside a void finding or judgment. Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732, 9 S.E.2d 860 (1940).

Writ of certiorari unavailable to set aside verdict or judgment which is absolutely void. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942), criticized, Frese v. Link, 76 Ga. App. 709, 47 S.E.2d 170 (1948); Thompson v. Allen, 69 Ga. App. 638, 26 S.E.2d 490 (1943).

Entities whose decisions are reviewable.

- Writ of certiorari lies for correction of errors in decisions by municipal corporations, courts, or councils, like other inferior judicatories, when rendered in exercise of their judicial powers. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Superior court erred in dismissing the appellant's petition for certiorari in which the appellant sought review of a hearing officer's decision upholding the public housing authority's decision to terminate the appellant's Section 8 voucher benefits as the hearing officer's decision was subject to review on certiorari because the hearing officer's decision was the result of quasi-judicial action as the appellant had the right to proper notice and a fair hearing, the appellant was afforded the opportunity to present evidence under judicial forms of procedure, and the hearing officer made a decision after determining the facts under a preponderance of the evidence standard and applying the appropriate law.

Termination of city employee.

- City manager's decision approving the termination of a city employee was subject to review by a petition for a writ of certiorari. Salter v. City of Thomaston, 200 Ga. App. 536, 409 S.E.2d 88 (1991).

In the employee's case alleging that the employee was improperly terminated by the City of Atlanta, the city, under O.C.G.A. § 5-4-1(a), was not entitled to a writ of certiorari, reversing the decision of the City of Atlanta Civil Service Board reinstating the employee after finding that the employee had been wrongfully terminated; evidence supported the determination that the termination of the employee pursuant to the reduction in force violated a city ordinance. City of Atlanta v. Harper, 276 Ga. App. 460, 623 S.E.2d 553 (2005).

Although a trial court's decision to dismiss an action by dismissed city employees was erroneously based on the court's determination that the employees had failed to exhaust their administrative remedies from their claim that the reduction-in-force ordinance, Atlanta, Ga., Code § 114-55, was not properly followed, as they had properly appealed to the Service Board and the Board had denied their claims on appeal, the dismissal was proper for other reasons; after the Board's final decision denying the employees' appeals, they failed to properly and timely file a writ of certiorari in the trial court pursuant to O.C.G.A. §§ 5-4-1(a) and5-4-6 in order to obtain review of that decision. Jordan v. City of Atlanta, 283 Ga. App. 285, 641 S.E.2d 275 (2007).

Trial court lacked subject-matter jurisdiction to review, pursuant to a writ of certiorari, the termination of a city employee because a city manager was not acting in a quasi-judicial capacity in permitting an employee to present evidence prior to finalizing the city manager's decision to terminate the employee; the city charter and personnel ordinance did not grant city employees a right to pretermination hearings. Goddard v. City of Albany, 285 Ga. 882, 684 S.E.2d 635 (2009).

Termination of county employee.

- Certiorari provided an adequate postdeprivation remedy for reviewing the actions of a board of county commissioners in terminating a county administrator. Board of Comm'rs v. Farmer, 228 Ga. App. 819, 493 S.E.2d 21 (1997).

Other employment actions.

- Writ of certiorari was a remedy to correct errors committed by any inferior judicatory or any person exercising judicial powers, and since the county police sergeant's hearing on the county police sergeant's demotion was a quasi-judicial hearing, and the availability of petitioning for a writ of certiorari was not otherwise limited by law, the county police sergeant was authorized to seek relief in the trial court without first pursuing a discretionary appeal to the county board of commissioners. Crumpler v. Henry County, 257 Ga. App. 615, 571 S.E.2d 822 (2002).

Denial of "line of duty" disability benefits by county school employees board was judicial in nature, and review of the decision by certiorari was required. Starnes v. Fulton County Sch. Dist., 233 Ga. App. 182, 503 S.E.2d 665 (1998).

Exercises of legislative, executive or ministerial functions.

- Writ of certiorari lies to correct errors or restrain excesses of jurisdiction of inferior courts and officers acting judicially only; the writ will, therefore, not be issued to officers whose functions and duties are ministerial, executive, or legislative and not judicial. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75, 181 S.E. 834, answer conformed to, 52 Ga. App. 35, 182 S.E. 204 (1935).

Certiorari is not an appropriate remedy to review or obtain relief from judgment, decision, or action of inferior judicatory or body rendered in exercise of legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942); Presnell v. McCollum, 112 Ga. App. 579, 145 S.E.2d 770 (1965); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is available for correction of erroneous judgments in exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts. Hayes v. Brown, 205 Ga. 234, 52 S.E.2d 862 (1949).

Review of a recorder's court decision lies in the superior court by writ of certiorari. McMillian v. City of Rockmart, 653 F.2d 907 (5th Cir. 1981).

Denial of conditional use permit was quasi-judicial.

- Because a decision denying a conditional use permit required the zoning board to determine the facts and apply the ordinance's legal standards to them, which was a decision-making process akin to a judicial act, the decision was reviewable by certiorari under O.C.G.A. § n5-4-1(a); the owner's failure to file a certiorari petition barred the owner's claims. O.C.G.A. § 36-66-3(4)(E)'s reference to "legislative" action was not determinative. Riverdale Land Group, LLC v. Clayton County, 354 Ga. App. 1, 840 S.E.2d 132 (2020).

Review by writ defined by statute.

- In an action wherein a property owner was challenging the denial of a site development permit, the grant of the county's motion to dismiss was reversed, in part, as to the owner seeking review by writ of certiorari because the scope of review by writ of certiorari was defined by statute and the statute's scope could not be enlarged by local ordinance regardless of whether the zoning ordinance provided specifically for such review. Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Comm'rs, 302 Ga. 284, 806 S.E.2d 561 (2017).

What Is Judicial Action

1. In General

What is judicial action.

- Judicial action is an adjudication upon rights of parties who in general appear or are brought before tribunal by notice or process, and upon whose claims some decision or judgment is rendered; it implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on one hand - for tribunal must decide according to law and rights of parties - or with dictation on the other; for in first instance the court must exercise the court's own judgment under the law, and not act under a mandate from another power. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75, 181 S.E. 834, answer conformed to, 52 Ga. App. 35, 182 S.E. 204 (1935).

Character of action determinative.

- Character of action in a given case must decide whether that action is judicial, ministerial, or legislative, or whether it be simply that of a public agent of the county or state, as in its varied jurisdiction it may by turns be each. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75, 181 S.E. 834, answer conformed to, 52 Ga. App. 35, 182 S.E. 204 (1935).

Test in determining whether proceeding is judicial.

- In determining whether proceeding is judicial in character, question hinges not on whether parties at interest were in fact given an opportunity to be heard, but the test is whether parties at interest had a right under law to demand a trial in accordance with judicial procedures. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945); What It Is, Inc. v. Jackson, 146 Ga. App. 574, 246 S.E.2d 693, cert. denied, 242 Ga. 204, 249 S.E.2d 614 (1978).

Effect of fact that tribunal could have acted nonjudicially.

- If a person or tribunal has right under proper delegated authority to act in judicial capacity, character of such judicial procedure, when had as prescribed, is not impaired because under the law such tribunal might have had alternative right to act ex parte without trial, but refused to exercise such right. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945).

Fact of trial when none is authorized by statute.

- Statute giving county commissioners in certain counties power to grant or refuse permission to establish cemeteries outside limits of incorporated towns does not confer upon such commission the duties and functions of a court, so that writ of certiorari might issue from its action taken upon any such application; rather the commission's action is merely entertainment and refusal of a request pertaining to executive duties of commissioners, and fact that there is a trial, when none is authorized under statute, does not operate to change nature and character of procedure. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945).

Exercise of discretion does not render action taken judicial.

- Fact that public agent exercises judgment or discretion in performance of duties does not make the agent's action or functions judicial. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75, 181 S.E. 834, answer conformed to, 52 Ga. App. 35, 182 S.E. 204 (1935).

Distinction between judicial and quasi-judicial action.

- Performance of judicial acts under authority conferred upon courts is judicial in character, while performance of judicial acts under authority conferred upon other persons, boards, or tribunals is quasi-judicial. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945).

Basic distinction between administrative and judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by action taken. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945).

Chief distinction between legislative and judicial function is that former sets up rights or inhibitions, usually general in character; while latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto. South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945).

2. Application

Decisions of trial judge of municipal court of Atlanta.

- Certiorari to superior court lies from decisions of trial judge of municipal court of Atlanta, Fulton section, for party who wishes to complain of judgment, order, or ruling. Gavant v. Berger, 182 Ga. 277, 185 S.E. 506, answer conformed to, 53 Ga. App. 304, 185 S.E. 726 (1936); Wrenn v. Bowden, 56 Ga. App. 713, 193 S.E. 456 (1937).

Probate judge's refusal to entertain petition to commit incompetent veteran.

- Refusal of court of ordinary (now probate court) to entertain jurisdiction of petition to commit incompetent World War I veteran to a United States hospital, is not reviewable by mandamus; certiorari is the appropriate remedy by which that judgment should be reviewed. Cheek v. Eve, 182 Ga. 30, 184 S.E. 700 (1936).

Decision, after trial, by governing body that alleged acts constitute nuisance.

- Decision by governing body of municipality as to whether alleged acts constitute a nuisance in violation of city ordinance, and whether the nuisances should be abated as provided by other city ordinances, made after trial in which parties at interest participated, is a judicial determination from which certiorari lies, and not an exercise of mere legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942).

Trial and conviction of police officer for conduct unbecoming an officer.

- Trial and conviction of a police officer, pursuant to city ordinance, on charges of conduct unbecoming an officer and violation of a police department rule, is a judicial proceeding from final judgment in which a writ of certiorari will lie. Heath v. City of Atlanta, 67 Ga. App. 85, 19 S.E.2d 746 (1942).

Revocation of certificate by Board for Examination, Qualification, and Registration of Architects is a judicial act and certiorari to superior court is available. Beckanstin v. Dougherty County Council of Architects, 215 Ga. 543, 111 S.E.2d 361 (1959).

City council decision denying application for liquor license.

- Restaurant owner's exclusive remedy from the city's denial of the owner's application for a liquor license was review of the city's decisions via writ of certiorari under O.C.G.A. § 5-4-1(a). The hearing on the owner's application was pursuant to notice, and the parties were provided with the opportunity to appear, to be represented by counsel, and to present evidence. Rozier v. Mayor, City of Savannah, 310 Ga. App. 178, 712 S.E.2d 596 (2011).

Hearing before a city procurement appeals hearing officer was a quasi-judicial proceeding as contemplated by O.C.G.A. § 5-4-1 because the ordinance authorizing the hearing entitled the litigants to a hearing "in accordance with judicial procedures" and because the hearing officer acted judicially, rather than administratively. Mack v. City of Atlanta, 227 Ga. App. 305, 489 S.E.2d 357 (1997).

Decision granting special use permit was quasi-judicial.

- Decision by a county board to grant a special use permit was a quasi-judicial decision because the process involved determining the facts and applying the county ordinance's legal standards to the permits, which was akin to a judicial act; the applicant therefore waived the applicant's challenge to two property owners' standing by failing to object before the board. O.C.G.A. § 36-66-3(4)(E) did not apply or compel the conclusion that the board of commissioner's decision was legislative. York v. Athens College of Ministry, Inc., 348 Ga. App. 58, 821 S.E.2d 120 (2018).

Proceedings before civil service board of county are quasi-judicial in character. Since board therefore exercises judicial powers, writ of certiorari lies for correction of errors committed by the board. Thompson v. Dunn, 102 Ga. App. 164, 115 S.E.2d 754 (1960).

Adverse decisions of city personnel boards regarding discharge.

- Discharged employees of city who are authorized to appeal their discharge to personnel board of city, are entitled to petition superior court for writ of certiorari from adverse decision of personnel board. Willis v. Jackson, 148 Ga. App. 432, 251 S.E.2d 341 (1978).

Decisions rendered by county boards of education.

- County board of education is at times a court of limited jurisdiction, and the board's decisions rendered in this sphere are judicial in nature, and are therefore reviewable by writ of certiorari. Fuller v. Williams, 150 Ga. App. 730, 258 S.E.2d 538, rev'd on other grounds, 244 Ga. 846, 262 S.E.2d 135 (1979).

Decision of state university dismissing tenured professor.

- Trial court properly dismissed a tenured professor's petition for writ of certiorari challenging the professor's dismissal from a state university because the hearing committee process resulting in the professor's dismissal was administrative, not judicial in nature; therefore, the trial court lacked jurisdiction over the matter. Laskar v. Bd. of Regents of the Univ. Sys. of Ga., 320 Ga. App. 414, 740 S.E.2d 179 (2013).

Board of trustees of Employees' Retirement System of Georgia is not a judicial body within the meaning of this section. Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445, 218 S.E.2d 97 (1975), aff'd, 237 Ga. 287, 227 S.E.2d 379 (1976).

Petition for writ of certiorari was appropriate remedy for homeowners denied building permit.

- Mandamus was not the appropriate remedy for homeowners whose building permit had been denied by a city; rather, the homeowners were required to pursue the homeowners' appeal through the filing of a petition for a writ of certiorari, pursuant to Statesboro, Ga., Zoning Ordinance § 1809 and O.C.G.A. § 5-4-1(a); moreover, the homeowners' appeal was untimely under O.C.G.A. § 5-4-6(a). City of Statesboro v. Dickens, 293 Ga. 540, 748 S.E.2d 397 (2013).

Decisions of police chief.

- Because the police officer identified no evidence that employees seeking injured on the job benefits were entitled to notice, a hearing in accordance with judicial procedure, and an opportunity to present evidence, the police chief's action constituted the discretionary exercise of executive power; consequently, the superior court correctly determined that there was no judicial or quasi-judicial action below and properly dismissed the officer's petition for writ of certiorari under O.C.G.A. § 5-4-1. Laughlin v. City of Atlanta, 265 Ga. App. 61, 592 S.E.2d 874 (2004).

County authorities' order to sheriff to take charge of room in courthouse.

- Action of county authorities in ordering sheriff to take charge of room in courthouse occupied by justice of peace was mere exercise of administrative power, and possessed no such attribute of judicial function as to permit certiorari therefrom under this section. McDonald v. Marshall, 185 Ga. 438, 195 S.E. 571 (1938).

Ruling of city council upholding the suspension of police officer was judicatory act, and certiorari would lie to review the ruling. Raughton v. Town of Fort Oglethorpe, 177 Ga. App. 171, 338 S.E.2d 754 (1985).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 329 et seq. 14 Am. Jur. 2d, Certiorari, § 1 et seq. 47 Am. Jur. 2d, Justices of the Peace, § 49.

C.J.S.

- 14 C.J.S., Certiorari, § 6 et seq. 24 C.J.S., Criminal Law, § 2330 et seq. 51 C.J.S., Justices of the Peace, § 430 et seq.

ALR.

- Right of prosecution to writ of certiorari in criminal case, 91 A.L.R.2d 1095.

5-4-2. Petition for certiorari to probate judge generally.

When either party in any case in any probate court lodges objections to any proceeding or decision in the case, affecting the real merits of the case, the party making the same shall offer the objections in writing, which shall be signed by himself or his attorney and, if the same are overruled by the court, the party may petition the superior court for a writ of certiorari, in which petition he shall plainly, fully, and distinctly set forth the errors complained of. If the court deems the objections to be sufficient, it shall forthwith issue a writ of certiorari, directed to the judge of the probate court, requiring him to certify and send up to the superior court, at the time specified in the writ, all the proceedings in the case.

(Laws 1799, Cobb's 1851 Digest, p. 523; Code 1863, § 3958; Code 1868, § 3978; Code 1873, § 4050; Code 1882, § 4050; Civil Code 1895, § 4635; Civil Code 1910, § 5181; Code 1933, § 19-201.)

JUDICIAL DECISIONS

Section to be strictly construed.

- O.C.G.A. § 5-4-2 is construed strictly because the statute is in derogation of common law. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Certiorari lies only as to issues raised in trial court.

- Error which may be corrected by writ of certiorari is one made by tribunal whose judgment is being reviewed because of such error. When it does not appear from the record that the issue was made in the trial court, the issue cannot be raised for the first time by certiorari in superior court and reviewed in the Supreme Court. Smith v. Mayor of Macon, 202 Ga. 68, 42 S.E.2d 128, answer conformed to, 75 Ga. App. 136, 42 S.E.2d 569 (1947).

Constitutional question may not be raised for first time in petition for writ of certiorari. Smith v. Mayor of Macon, 202 Ga. 68, 42 S.E.2d 128, answer conformed to, 75 Ga. App. 136, 42 S.E.2d 569 (1947).

Certiorari is a proper but not exclusive remedy, in a proper case, to correct error in decision of court of ordinary (now probate court). Stephens v. Bell, 41 Ga. App. 353, 153 S.E. 99 (1930).

Void judgments may be set aside only by certiorari proceedings. Latimer v. Burtz, 28 Ga. App. 691, 112 S.E. 912 (1922).

Special assignment of error necessary.

- No questions are presented for review under section unless raised by special assignment of error. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936) (see now O.C.G.A. § 5-4-2).

Written exceptions to decision of court of ordinary (now probate court) are necessary for certiorari. Morris v. Morris, 74 Ga. 826 (1885); Burdett v. Burdett, 130 Ga. 514, 61 S.E. 121 (1908).

Noncompliance with requirements as to setting forth errors.

- Noncompliance with requirements of setting forth "plainly and distinctly the error complained of," and failure to set forth grounds of motion for new trial or attach the grounds to petition as an exhibit, is ground for dismissal. East River Nat'l Bank v. Ellman, 36 Ga. App. 263, 136 S.E. 799 (1927).

Former Civil Code 1910, § 5181 (see O.C.G.A. § 5-4-2) was inapplicable to decisions of ordinary (now judge of probate court) not sitting as a court; in such case, former Civil Code 1910, § 5183 (see O.C.G.A. § 5-4-3) applied § 5-4-3. Fortson v. Mattox, 67 Ga. 282 (1881); Davis v. James, 145 Ga. 325, 89 S.E. 203 (1916).

Section inapplicable to wrongful death action.

- O.C.G.A. § 5-4-2 does not encompass the maintenance of a wrongful death action by the siblings of a decedent. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Remedy for decision concerning homestead.

- Unless provision is made for appeal, remedy of leasing party to complain of any error in judgment of ordinary (now judge of probate court) in setting apart or in refusing to set apart homestead, is by certiorari. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024 (1900); Fontano v. Mozley & Co., 121 Ga. 46, 48 S.E. 707 (1904).

Grant of temporary letters of administration.

- Certiorari will lie to correct error of ordinary (now judge of probate court) who, in term time, on contest with parties before the ordinary, grants letters of administration pendente lite. Redd v. Dure, 40 Ga. 389 (1869).

When motion to dismiss is improperly sustained.

- When demurrer (now motion to dismiss) to application to set aside fraudulent discharge granted an administrator is improperly sustained, writ of certiorari lies to correct such judgment. Seagraves v. W.E. Powell Co., 143 Ga. 752, 85 S.E. 760 (1915).

Probate judge's refusal to entertain petition to commit incompetent veteran.

- Refusal of court of ordinary (now probate court) to entertain jurisdiction of petition to commit incompetent World War I veteran to a United States hospital, is not reviewable by mandamus; certiorari is appropriate remedy by which that judgment should be reviewed. Cheek v. Eve, 182 Ga. 30, 184 S.E. 700 (1936).

Correction of erroneous fact statements in exception.

- Party excepting to judgment of ordinary (now judge of probate court) is entitled to have pointed out to the ordinary the alleged incorrect statement of fact in exceptions and to have opportunity to correct the errors or compel decision on exceptions as the exceptions stand, if exceptor is correct in the exceptor's contention that exceptions state facts. Guest v. Rucker, 77 Ga. App. 696, 49 S.E.2d 687 (1948).

Probate judge's refusal to certify exceptions due to misstated facts.

- When the distributee and creditor cite administrator for settlement and, after judgment in case, file exception to judgment with ordinary (now judge of probate court), refusal of ordinary to certify to exceptions for reason that facts set out in exceptions are not true, is not such a judgment overruling exceptions as to be the basis for a petition for writ of certiorari. Guest v. Rucker, 77 Ga. App. 696, 49 S.E.2d 687 (1948).

Cited in Barrett v. Jackson, 38 Ga. 181 (1868); Logan v. State, 56 Ga. App. 460, 192 S.E. 839 (1937); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Brockett v. Maxwell, 73 Ga. App. 663, 38 S.E.2d 176 (1946); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Miller v. Miller, 96 Ga. App. 469, 100 S.E.2d 594 (1957); Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Procedure.

- Certiorari is a proper procedure, upon election, for a defendant dissatisfied with the rulings of the probate court and, in response to the writ of certiorari, when issued by the superior court, the probate judge must certify and send to the superior court the entire record of the case. 1986 Op. Att'y Gen. No. U86-13.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 333 et seq. 14 Am. Jur. 2d, Certiorari, § 62 et seq.

ALR.

- Certiorari after judgment to test sufficiency of indictment or information as regards the offense sought to be charged, 150 A.L.R. 743.

5-4-3. Petition for certiorari to inferior judicatories generally.

When either party in any case in any inferior judicatory or before any person exercising judicial powers is dissatisfied with the decision or judgment in the case, the party may apply for and obtain a writ of certiorari by petition to the superior court for the county in which the case was tried, in which petition he shall plainly and distinctly set forth the errors complained of. On the filing of the petition in the office of the clerk of the superior court, with the sanction of the appropriate judge endorsed thereon, together with the bond or affidavit, as provided in Code Section 5-4-5, it shall be the duty of the clerk to issue a writ of certiorari, directed to the tribunal or person whose decision or judgment is the subject matter of complaint, requiring the tribunal or person to certify and send up all the proceedings in the case to the superior court, as directed in the writ of certiorari.

(Laws 1850, Cobb's 1851 Digest, p. 529; Code 1863, § 3960; Code 1868, § 3980; Code 1873, § 4052; Ga. L. 1878-79, p. 153, § 7; Code 1882, § 4052; Civil Code 1895, § 4637; Civil Code 1910, § 5183; Code 1933, § 19-203.)

Law reviews.

- For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).

JUDICIAL DECISIONS

General Consideration

Right of certiorari is a constitutional right, and may be used to review any judgment of an inferior judicatory. Young v. Broyles, 16 Ga. App. 356, 85 S.E. 366 (1915).

Right of certiorari, if pursued in due time, is unaffected by occurrences in lower court. Young v. Broyles, 16 Ga. App. 356, 85 S.E. 366 (1915).

Right of certiorari may be exercised without moving for new trial in trial court. Young v. Broyles, 16 Ga. App. 356, 85 S.E. 366 (1915).

Construction with O.C.G.A. § 51-1-27. - Upon the grant of certiorari in a medical malpractice action filed by plaintiff parents against a pediatrician, a nurse, and others, a Georgia trial court did not abuse the court's discretion by prohibiting the parents from showing that the nurse failed to pass the nursing board examination, as such evidence was irrelevant, and even if it could be said that the evidence had any probative value, it was substantially outweighed by the danger of undue prejudice. Snider v. Basilio, 281 Ga. 261, 637 S.E.2d 40 (2006).

Each party may have writ in the party's own favor in same cause, and pendency of first writ sued out is no ground for dismissing second. Cunningham v. Elliott, 92 Ga. 159, 18 S.E. 365 (1893).

Writ of certiorari as full and adequate remedy at law.

- Writ of certiorari ordinarily furnishes a full and adequate remedy at law for correction of errors in decisions by municipal corporations, courts, or councils, rendered in exercise of judicial powers; so that even though a property right may be primarily involved in such manner as would authorize injured party to resort to equity, one is not entitled to claim such relief, when one has already appeared before a municipal judicatory, and that body has rendered an adverse decision. Ballard v. Mayor of Carrollton, 194 Ga. 489, 22 S.E.2d 81 (1942).

Absent sanction by judge, clerk is unauthorized to file application or issue writ of certiorari. Bellew v. State Hwy. Dep't, 127 Ga. App. 301, 193 S.E.2d 202 (1972).

Failure to obtain sanction is not amendable defect.

- Failure to obtain the requisite sanction from the appropriate judge is not an amendable defect if the 30-day time requirement for applying for certiorari under O.C.G.A. § 5-4-6(a) has expired. Cobb County v. Herren, 230 Ga. App. 482, 496 S.E.2d 558 (1998).

Plaintiff may obtain order directing clerk to issue writ.

- If clerk fails to issue writ of certiorari before term to which the writ is returnable, plaintiff may, if there has been no laches on the plaintiff's part, move the court for an order directing the clerk to issue a writ. Without such order, the clerk has no authority to issue a writ of certiorari subsequently to the term to which the writ was originally returnable, and a motion to dismiss will be sustained if one attempts to do so. Walea v. State, 121 Ga. 585, 49 S.E. 710 (1905).

When first petition is sanctioned, but not filed with clerk.

- When petition for certiorari to review judgment of justice of peace was sanctioned, but was never filed in office of clerk of superior court, petition was a mere nullity; and second petition for certiorari in same case, presented to judge of superior court within 30 days from date of judgment complained of, is not subject to dismissal on ground that petitioner has no legal right to present second petition for certiorari in same case. Weaver v. Moss, 71 Ga. App. 329, 30 S.E.2d 779 (1944).

Factual statements of justice of peace, in answer to writ of certiorari presumed true until traversed. Shelton v. Doster, 99 Ga. App. 863, 109 S.E.2d 862 (1959).

Magistrate's return failing to send up proceedings.

- Magistrate's return is incomplete when the return fails to certify and send up any proceedings in the case. Hardy v. Hardy, 2 Ga. App. 530, 58 S.E. 779 (1907).

An assignment of error that this duty was not complied with must be sustained. Stoufer v. Missenheimer, 26 Ga. App. 554, 106 S.E. 560 (1921), later appeal, 28 Ga. App. 350, 111 S.E. 692 (1922).

Failure of justice of peace to send up copies of proceedings in the justice's court when the proceedings are necessary to determination of cause is good ground for dismissal of certiorari; certiorari will not be dismissed because the magistrate fails to send up copies of proceedings when errors complained of in petition as verified by answer can be fully considered and determined without reference to such proceedings. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

When the magistrate has failed to certify and send up proceedings in the case, assignment of error that duty was not complied with must be sustained. Stoufer v. Missenheimer, 26 Ga. App. 554, 106 S.E. 560 (1921), later appeal, 28 Ga. App. 350, 111 S.E. 692 (1922).

Remedy to review superior court judge's refusal to sanction petition for certiorari is by writ of error to proper appellate court and not by petition to appellate court for mandamus to compel judge to sanction petition. Jones v. Anderson, 106 Ga. App. 590, 127 S.E.2d 719 (1962).

Action under Dram Shop Act.

- Upon certiorari review, given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia's Dram Shop Act, O.C.G.A. § 51-1-40(b), the trial court erred in granting summary judgment to an injured party's guardian as the tavern's manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern's intoxicated patron's would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29 (2007).

Denial of writ improper.

- Since the municipal court did not inquire into the defendant's understanding of the nature of the violation to which the defendant confessed guilt, and the record likewise did not show any factual basis for the plea independent of such an inquiry, the superior court erred in denying a writ of certiorari. Brownlee v. City of Atlanta, 212 Ga. App. 174, 441 S.E.2d 492 (1994).

Court without ability to enforce 2010 Order.

- Trial court erred in upholding the decision of a recorder's court finding the defendant in contempt of the 2010 Order from an unrelated case because the uncontroverted evidence showed that the 2010 case against the defendant had been dismissed; thus, the recorder's court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 Order, which was no longer in effect. Lewis v. City of Savannah, 336 Ga. App. 126, 784 S.E.2d 1 (2016).

Cited in McCardle v. Fogarty, 41 Ga. 626 (1871); Western & Atl. R.R. v. Jackson, 81 Ga. 478, 8 S.E. 209 (1888); Dixon v. State, 121 Ga. 346, 49 S.E. 311 (1904); Smith v. Marshall, 127 Ga. 374, 56 S.E. 416 (1907); Sapp v. Parrish, 3 Ga. App. 234, 59 S.E. 821 (1907); Thrasher v. Town of Center, 8 Ga. App. 391, 69 S.E. 36 (1910); Johnston v. Brenau College-Conservatory, 146 Ga. 182, 91 S.E. 85 (1916); Lowenstein v. Johnston, 23 Ga. App. 261, 98 S.E. 111 (1919); Partee v. Peters, 33 Ga. App. 694, 127 S.E. 660 (1925); Thompson v. Savannah Bank & Trust Co., 39 Ga. App. 809, 148 S.E. 621 (1929); O'Neal v. Lide, 45 Ga. App. 235, 164 S.E. 110 (1932); Statham v. State, 50 Ga. App. 165, 177 S.E. 522 (1934); Raley v. Board of Civil Serv. Comm'n, 61 Ga. App. 152, 5 S.E.2d 918 (1939); Cowart v. State, 62 Ga. App. 559, 8 S.E.2d 729 (1940); Butler v. City of Dublin, 191 Ga. 551, 13 S.E.2d 362 (1941); Lewenstein v. Curry, 75 Ga. App. 22, 42 S.E.2d 158 (1947); Titshaw v. Rushton, 83 Ga. App. 685, 64 S.E.2d 473 (1951); Beckerman v. City of Claxton, 92 Ga. App. 670, 89 S.E.2d 557 (1955); Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Manning v. A.A.B. Corp., 223 Ga. 111, 153 S.E.2d 561 (1967); Berry v. Consumer Credit, 124 Ga. App. 586, 184 S.E.2d 694 (1971); Sonesta Int'l Hotels Corp. v. Colony Square Co., 482 F.2d 281 (5th Cir. 1973); Goldstein v. Smith, 141 Ga. App. 493, 233 S.E.2d 864 (1977); International Funeral Servs., Inc. v. DeKalb County, 244 Ga. 707, 261 S.E.2d 625 (1979); Henson v. DeKalb County, 158 Ga. App. 348, 280 S.E.2d 393 (1981); Attwell v. Sears Roebuck & Co., 159 Ga. App. 811, 285 S.E.2d 199 (1981); Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985); Allen v. City of Marietta, 601 F. Supp. 482 (N.D. Ga. 1985); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Fisher v. City of Atlanta, 212 Ga. App. 635, 442 S.E.2d 762 (1994); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

Bond

Issuance of writ in criminal case from city court.

- Application for writ of certiorari to correct errors alleged to have been committed in criminal court of Atlanta, need not be accompanied by bond conditioned for appearance of accused to answer and abide final order, sentence, and judgment of court. Laws v. State, 15 Ga. App. 361, 83 S.E. 279 (1914).

Bond not prerequisite to issuance of writ of certiorari in criminal case from city court. Malone v. State, 27 Ga. App. 53, 107 S.E. 358 (1921).

Bond as condition precedent to review by certiorari of recorder's court conviction.

- Filing of bond or pauper's affidavit provided for under former Code 1933, §§ 19-214 and 19-215 (see O.C.G.A. § 5-4-20), condition precedent to application for certiorari to review judgment of conviction in recorder's court. West v. City of College Park, 116 Ga. App. 355, 157 S.E.2d 491 (1967).

Decisions from Which Certiorari Is Available

1. In General

Decisions of municipal corporations, courts, or councils rendered in judicial capacity.

- Writ of certiorari lies for correction of errors in decisions by municipal corporations, courts, or councils, like other inferior judicatories, when rendered in exercise of their judicial powers. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

Petition subject to renewal.

- Trial court properly denied the city's motion to dismiss the landowner's renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135, 789 S.E.2d 386 (2016).

Exercises of legislative, executive, or ministerial functions.

- Certiorari is not an appropriate remedy to review or obtain relief from judgment, decision, or action of inferior judicatory or body rendered in exercise of legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840, 20 S.E.2d 263 (1942); Presnell v. McCollum, 112 Ga. App. 579, 145 S.E.2d 770 (1965); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972), aff'd, 482 F.2d 280 (5th Cir. 1973), cert. denied, 422 U.S. 1044, 95 S. Ct. 2660, 45 L. Ed. 2d 696 (1975).

In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is available for correction of erroneous judgments in exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts. Hayes v. Brown, 205 Ga. 234, 52 S.E.2d 862 (1949).

Certiorari lies only as to issues raised in trial court.

- Error which may be corrected by writ of certiorari is one made by tribunal whose judgment is being reviewed because of such error. When it does not appear from the record that issue was made in trial court, it cannot be raised for first time by certiorari in superior court and reviewed in the Supreme Court. Smith v. Mayor of Macon, 202 Ga. 68, 42 S.E.2d 128, answer conformed to, 75 Ga. App. 136, 42 S.E.2d 569 (1947).

Final determination required.

- Appeal to the superior court from an order of the city courts may be taken only by petition for certiorari pursuant to O.C.G.A. § 5-4-3, and only from a "decision or judgment." The writ of certiorari does not lie to correct a judgment of an inferior judicatory until after a final determination of the case. Jenga v. Deveaux, 193 Ga. App. 436, 388 S.E.2d 361 (1989).

Certiorari will not lie to correct void judgment. McDonald v. Farmers Supply Co., 143 Ga. 552, 85 S.E. 861 (1915); Gravitt v. Mullins, 28 Ga. App. 806, 113 S.E. 61 (1922); Griggs v. City of Macon, 154 Ga. 519, 114 S.E. 899 (1922).

Party winning party's case completely in justice's court is not entitled to writ. Shope v. Fite & Boston, 91 Ga. 174, 16 S.E. 990 (1893).

When there are disputed issues of fact.

- When in trial of case pending in justice's court, there are disputed issues of fact, judgment rendered by magistrate cannot be directly reviewed by writ of certiorari, but there must be appeal, either to jury in that court or to superior court. Story v. Printup, 52 Ga. App. 818, 184 S.E. 752 (1936).

When no issue of fact, justice court's judgment is reviewable by certiorari, regardless of amount involved. Ray v. Rogers, 58 Ga. App. 804, 200 S.E. 193 (1938).

Availability of certiorari to test sufficiency of evidence to warrant verdicts or judgments.

- Ray v. Rogers, 58 Ga. App. 804, 200 S.E. 193 (1938).

Available for decisions of any inferior judicatory.

- O.C.G.A. § 5-4-3 has reference to the correction of errors in cases in which the writ of certiorari lies, and the writ shall apply to persons dissatisfied with the decision or judgment of any inferior judicatory. Pough v. State, 162 Ga. App. 63, 290 S.E.2d 300 (1982).

Review of a recorder's court decision.

- Proper procedure for appealing decisions from a county recorder's court is by certiorari to the superior court. Smith v. Gwinnett County, 246 Ga. App. 865, 542 S.E.2d 616 (2000).

2. Application

Writ of certiorari lies when motion for new trial is overruled. Walker v. State, 8 Ga. App. 214, 68 S.E. 873 (1910).

Certiorari may be used as means of reviewing judgment upon motion for new trial. Young v. Broyles, 16 Ga. App. 356, 85 S.E. 366 (1915).

Justice court's dismissal for want of prosecution.

- From judgment of justice's court dismissing case for want of prosecution, appeal to jury does not lie. If there is error in judgment, certiorari is remedy to have case reinstated. Dolvin, Davidson & Co. v. W.W. Stovall Co., 8 Ga. App. 37, 68 S.E. 488 (1910).

Analyzing the limits of the public duty doctrine.

- Upon certiorari review by the Georgia supreme court to examine a determination by the court of appeals that the public duty doctrine did not extend to the official actions of building inspectors, but was limited to the police protection activities of law enforcement officers, the supreme court upheld that determination, as: (1) despite a building inspector's contrary claim, the terms "police protection" and "police power" are not synonymous; and (2) case law provides that the public duty doctrine addresses only the provision of police protection services traditionally done by police law enforcement personnel. Gregory v. Clive, 282 Ga. 476, 651 S.E.2d 709 (2007).

Certiorari granted from justice court's judgment in suit on unverified open account. Hardy v. Hardy, 2 Ga. App. 530, 58 S.E. 779 (1907).

Certiorari granted from justice court's judgment concerning forcible entry and detainer. Taylor v. Gay, 20 Ga. 77 (1856); McDonald v. Cousins, 23 Ga. 227 (1857).

Certiorari granted from justice court's judgment taxing costs. Hewett v. Robertson, 124 Ga. 920, 53 S.E. 456 (1906).

Certiorari granted from justice court's judgment in proceeding to strengthen attachment bond. Gregory v. Clark, 73 Ga. 542 (1884).

Juror's names omitted from jury list.

- Certiorari from justice court's judgment denied when the jurors' names were omitted from jury list. Mitchell v. Bradberry, 76 Ga. 15 (1885).

Certiorari granted from justice court's judgment in suit establishing lost papers. Humphrey v. Johnston, 13 Ga. App. 557, 79 S.E. 530 (1913).

Section applicable to certiorari from city courts unless Act creating court provides otherwise. Miller v. State, 126 Ga. 558, 55 S.E. 405 (1906); Malone v. State, 27 Ga. App. 53, 107 S.E. 358 (1921).

Certiorari to superior court lies from decisions of trial judge of municipal court of Atlanta, Fulton section, for party who wishes to complain of judgment, order, or ruling. Gavant v. Berger, 182 Ga. 277, 185 S.E. 506, answer conformed to, 53 Ga. App. 304, 185 S.E. 726 (1936).

Writ of certiorari lies from judgment of police court. Davis v. City of Waycross, 10 Ga. App. 384, 73 S.E. 556 (1912).

Certiorari unavailable as to magistrate's judgment binding defendant over to answer to criminal offense. Griggs v. City of Macon, 154 Ga. 519, 114 S.E. 899 (1922).

Certiorari permitted from decision of ordinary (now judge of probate court) sitting as habeas corpus court. Chapman v. Woodruff, 34 Ga. 91 (1864); Malone v. State, 27 Ga. App. 53, 107 S.E. 358 (1921).

Certiorari permitted from decision of ordinary (now judge of probate court) under former Code 1873, §§ 738, 739, 740 (see O.C.G.A. § 44-9-59), governing removal of obstructions on rights-of-way. Fortson v. Mattox, 67 Ga. 282 (1881).

Certiorari permitted from decision of mayor and council acting in judicial capacity. Mayor of Macon v. Shaw, 16 Ga. 172 (1854); Carr v. City Council, 124 Ga. 116, 52 S.E. 300 (1905).

Certiorari permitted from decision of county commissioners ordering opening of private right-of-way. Leathers v. Furr, 62 Ga. 421 (1879).

Failure to issue writ.

- Superior court erred in denying the city board of appeals' motion to dismiss a petition for writ of certiorari because there was a complete failure to even issue a writ of certiorari, let alone serve the writ upon the board as the respondent; and the petitioner failed to name the city as an opposite party, and failed to serve the city with a copy of the petition and with a copy of the writ in the time required. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).

Certiorari not available from ruling of plumbing inspector. City Council v. Loftis, 156 Ga. 77, 118 S.E. 666 (1923).

Appeal from decision of recorder's court.

- Recorder's Court of Chatham County is not such a "like court" within the meaning of O.C.G.A. § 5-4-3 establishing this court's jurisdiction; therefore, the proper procedure for appealing from any decision of a recorder's court is by application for a writ of certiorari. Ferrell v. State, 160 Ga. App. 881, 289 S.E.2d 3 (1982).

Local constitutional amendment vesting the recorder's court of a county with jurisdiction to take and entertain pleas of guilty in misdemeanor cases does not authorize a direct appeal to the Court of Appeals and the writ of certiorari is still the method of appealing the writ. Pough v. State, 162 Ga. App. 63, 290 S.E.2d 300 (1982).

Proper method for obtaining review of a decision of a recorder's court is either by direct appeal to the superior court, in the case of traffic violations, or by application for certiorari to the superior court. Franklin v. Recorder's Court, 174 Ga. App. 498, 330 S.E.2d 429 (1985).

Defendant's challenge to the defendant's misdemeanor traffic convictions by a motion to vacate was not an appropriate remedy, and the defendant's motion could not be construed as a motion for arrest of judgment or other alternative motion because the motion was untimely under O.C.G.A. § 40-13-33(a); the 180-day limit applied to any challenge that could have been brought by habeas corpus, and suspension of a driver's license interfered with a liberty interest. The defendant could have brought a direct appeal under O.C.G.A. § 5-4-3. Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, 2018 Ga. LEXIS 236 (Ga. 2018).

Hearing before county board of commissioners issuing "order" finding liability for business taxes and directing that a fieri facias be issued for the amount of taxes due does not constitute a decision of an inferior judicatory from which the taxpayer should petition for certiorari in the superior court where the hearing is not transcribed or recorded, but is memorialized only by the minutes of the meeting, the hearing is not conducted in accordance with judicial procedure, and the ordinance in question does not give an appellant as a matter of right a trial in accordance with judicial procedure. Accordingly, declaratory judgment relief is proper. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983).

Petition for Certiorari

1. In General

Special assignment of error necessary.

- No questions are presented for review unless raised by special assignment of error. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936).

Petition concerning judgment or ruling of court which assigns no error is an absolute nullity. Clements v. McCormick Harvesting Mach. Co., 115 Ga. 851, 42 S.E. 222 (1902); Green v. Patterson, 25 Ga. App. 374, 103 S.E. 437 (1920).

Assignments of error in petition for certiorari must be specific, and when based on rulings of trial court must specifically point out reasons why rulings are error. Grant v. State, 48 Ga. App. 162, 172 S.E. 89 (1933).

Failure to issue writ.

- Although the city board of appeals was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, the superior court erred in denying the board's motion to dismiss because there was a failure to comply with the statutory requirements as no writ had been issued and served; and, while it was the clerk's duty to issue the writ, it was also separately the duty of the petitioner or the petitioner's counsel to ensure that a writ was served, and the petitioner could not completely divorce itself from the failure that occurred in the current case. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).

Dismissal proper when respondent does not answer.

- In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. Ý 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. Ý 5-4-7, dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. Ý 5-4-3. Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304, 840 S.E.2d 708 (2020).

2. Sufficiency of Assignment of Error

Must specify wherein verdict or judgment is erroneous.

- Petition merely objecting to judgment, without stating reason, is insufficient. Papworth v. City of Fitzgerald, 111 Ga. 54, 36 S.E. 311 (1900); Harrell v. City of Quitman, 17 Ga. App. 299, 86 S.E. 662 (1915).

Assignment of error stating only that judgment is contrary to law is insufficient. Davis v. Town of Gibson, 24 Ga. App. 813, 102 S.E. 466 (1920).

Assignments of error must be specific whether contained in bill of exceptions or in petition for certiorari, and, when based upon decision of trial court, must specifically point out reason why decision is error. Wall v. Hawker Pottery Co., 27 Ga. App. 255, 108 S.E. 134 (1921).

Failure to point out error in rulings renders assignment of error insufficient. Illinois C.R.R. v. Banks, 31 Ga. App. 756, 122 S.E. 85 (1924).

Mere general averment of error, in connection with which there is no statement or assignment whatever as to how or wherein rulings complained of were erroneous, presents no case or question for decision by judge of the superior court. Chan v. Judge, 36 Ga. App. 13, 134 S.E. 925 (1926); Davis v. Lee, 38 Ga. App. 667, 145 S.E. 110 (1928).

When verdict or judgment is complained of, assignment of error, unless judgment is on demurrer (now motion to dismiss) or similar pleading or on motion for new trial, must specifically point out wherein verdict or judgment is erroneous. Feckoury v. Maloney, 40 Ga. App. 157, 149 S.E. 91 (1929).

General exception to judgment suffices when it is alleged error stems from erroneous antecedent ruling, provided specific assignments of error are made and preserved as to such antecedent rulings. Louisville & N.R.R. v. Lovelace, 26 Ga. App. 286, 106 S.E. 6 (1921).

Assignment of error upon jury charge must specify error or state alternate charge.

- In petition for certiorari, assignment of error upon excerpt from charge of court presents no question for reviewing court when it is not pointed out wherein excerpt is erroneous, or why it should not have been given, or why different instructions should have been given. Maner v. State, 54 Ga. App. 282, 187 S.E. 692 (1936).

Must set forth ordinance allegedly violated or deny ordinance's existence.

- Petition for certiorari from recorder's court, seeking review by superior court of judgment, is fatally defective when the petition does not set out copy of ordinance upon which charge or summons is predicated, or else a denial of its existence. Wright v. City of Atlanta, 61 Ga. App. 650, 7 S.E.2d 215 (1940).

Defendant's petition for writ of certiorari was fatally and fundamentally flawed, as the writ did not recite the provisions of the statute under which defendant was convicted, so the appellate court had no context within which to review the evidence. Collier v. Merck, 261 Ga. App. 831, 584 S.E.2d 1 (2003).

Petition for certiorari from conviction for violation of municipal ordinance should contain provisions of ordinance.

- When it is sought to review by certiorari a conviction on charge of having violated a municipal ordinance, existence of which is admitted in petition for certiorari, provisions of ordinance should be stated in petition, but it is not necessary that ordinance be literally copied therein. Childrey v. City of Atlanta, 62 Ga. App. 107, 7 S.E.2d 919 (1940).

Because a city's petition for certiorari plainly and distinctly asserted the errors complained of, the superior court did not err in denying the city's motion to dismiss; moreover, the record reflected that the bar managers cited for violation of Atlanta, Ga., Code of Ordinances § 10-46 (1995) preserved the issue as to the constitutionality of the ordinance and the ordinance's enforcement. City of Atlanta v. Jones, 283 Ga. App. 125, 640 S.E.2d 698 (2006).

Certification of payment of costs and giving of security need not be attached to petition.

- It is not necessary to attach to petition for certiorari a certificate of magistrate that costs have been paid and security given before sanction of petition of judge of superior court can be obtained. Jones v. Johnson & Ledbetter Constr. Co., 185 Ga. 323, 194 S.E. 902 (1938).

Completed transcript of evidence adduced at board of education hearing is not required for certiorari petition under section, although appellant may elect to incorporate it in petition. Booth v. Ware County Bd. of Educ., 223 Ga. 583, 157 S.E.2d 469 (1967).

Assignment of error that judgment complained of is contrary to law, truth, and justice, is insufficient. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Writ granted only when error complained of is erroneous as a matter of law.

- Under this section, writ of certiorari may be granted only when the judgment complained of is erroneous as a matter of law, and a petition seeking such writ must set forth legal errors committed in police court or other inferior tribunal and pray their correction by superior court. 1960-61 Op. Att'y Gen. p. 96.

Appeals from a municipal court conviction of a traffic offense may lie in the Court of Appeals or in the superior court depending on the status of the municipal court and the nature of the offense. 1985 Op. Att'y Gen. No. U85-18.

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 52 et seq.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, § 30. 51 C.J.S., Justices of the Peace, § 430 et seq.

5-4-4. Petition for certiorari in appeal case tried by jury in justice of the peace court generally.

Reserved. Repealed by Ga. L. 1983, p. 884, § 4-2, effective July 1, 1983.

Editor's notes.

- This Code section was based on Ga. L. 1878-79, p. 142, § 1; Code 1882, § 4157j; Civil Code 1895, § 4149; Civil Code 1910, § 4749; Code 1933, § 19-204.

5-4-5. Bond and security required; certificate of payment of costs; oath of security; affidavit of indigence.

  1. Before any writ of certiorari shall issue, except as provided in subsection (c) of this Code section, the party applying for the same, his agent, or his attorney shall give bond and good security, conditioned to pay the adverse party in the case the sums sought as an award to be recovered, together with all future costs, and shall also produce a certificate from the officer whose decision or judgment is the subject matter of complaint that all costs which may have accrued on the trial below have been paid. The bond and certificate shall be filed with the petition for certiorari, and security on the bond shall be liable as securities on appeal.
  2. The person authorized to receive bond and security may compel the security tendered to swear upon oath the means by which he can fulfill the bond obligation. Such action shall exonerate from liability the person receiving the bond and security.
  3. If the party applying for the writ of certiorari makes and files with his petition a written affidavit that he is advised and believes that he has good cause for certiorari to the superior court and that because of his indigence he is unable to pay the costs or give security, as the case may be, the affidavit shall in every respect answer instead of the certificate and bond above-mentioned.

(Laws 1811, Cobb's 1851 Digest, pp. 523, 524; Code 1863, §§ 3962, 3963, 3964; Code 1868, §§ 3982, 3983, 3984; Code 1873, §§ 4054, 4055, 4056; Code 1882, §§ 4054, 4055, 4056; Civil Code 1895, §§ 4639, 4640, 4641; Ga. L. 1897, p. 33, § 1; Civil Code 1910, §§ 5185, 5186, 5187; Code 1933, §§ 19-206, 19-207, 19-208.)

Law reviews.

- For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).

JUDICIAL DECISIONS

General Consideration

Giving bond or making affidavit is condition precedent, in civil case, to issuance of writ. Page v. White, 77 Ga. App. 21, 47 S.E.2d 662 (1948).

Filing of bond or making of pauper affidavit is condition precedent to application to superior court for writ of certiorari. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).

Petition must affirmatively show filing of bond or pauper affidavit and approval of clerk or judge. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).

Failure to pay costs and give bond, or to make pauper's affidavit renders certiorari void. Quinn v. O'Neal, 57 Ga. App. 248, 194 S.E. 911 (1938).

Writ of certiorari in civil case is void when issued before applicant has given bond, or has made and filed affidavit in forma pauperis, in lieu of such bond. Page v. White, 77 Ga. App. 21, 47 S.E.2d 662 (1948).

When it affirmatively appears from petition for certiorari that there was failure to give bond or to make pauper affidavit, such failure renders the petition for certiorari void and an absolute nullity, and the petition cannot proceed. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).

Court was correct in dismissing petition for writ of certiorari when it affirmatively appeared from the petition that no attempt had been made to comply with requirements of section relative to making of proper bond or execution of proper pauper's affidavit. Calloway v. Georgia Real Estate Comm'n, 89 Ga. App. 823, 81 S.E.2d 540 (1954).

Writ of certiorari is void, when the writ is issued in case where bond required by section, properly approved, has not been given. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267 (1934).

Dismissal or writ of certiorari proper.

- Certiorari is properly dismissed when record does not show that bond was filed with petition. Odom Bros. Co. v. Stovall, 28 Ga. App. 661, 112 S.E. 907 (1922).

Effect of failure to comply.

- Superior court acquires no jurisdiction of case when the party fails to comply with section. Hartsfield Co. v. Luddy, 45 Ga. App. 507, 165 S.E. 452 (1932).

Certiorari from municipal court proceeding regarding nuisance.

- Proceeding in municipal court to determine question of whether nuisance existed was not criminal or quasi criminal in nature since the court cannot fine or imprison the defendant in error, and bond required for certiorari is that provided for in former Code 1933, §§ 19-206, 19-207, and 19-208 (see O.C.G.A. § 5-4-5) for civil proceedings, and a bond under Code 1933, §§ 19-214, 19-215, and 19-216 (see O.C.G.A. § 5-4-20) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598, 98 S.E.2d 216 (1957).

Provisions of section are inapplicable to criminal cases. Brown v. State, 124 Ga. 411, 52 S.E. 745 (1905); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954) (decided under former Civil Code 1910, § 4185, now subsection (a) of this section).

Section inapplicable when certiorari is sought for review of conviction for violation of municipal ordinance. Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975).

Judicial notice.

- Trial court erred by relying upon a county ordinance not properly in the record to support the court's conclusion that a writ of certiorari was an appropriate method of judicial review of actions undertaken by a county planning commission in approving a developer's plan to build a subdivision of town homes; as a result, the appellate court was precluded from reviewing the owners' constitutional challenge to the ordinance. Monterey Cmty. Council v. DeKalb County Planning Comm'n, 281 Ga. App. 873, 637 S.E.2d 488 (2006).

Construction with O.C.G.A. § 51-1-27. - Upon the grant of certiorari in a medical malpractice action filed by plaintiff parents against a pediatrician, a nurse, and others, a Georgia trial court did not abuse the court's discretion by prohibiting the parents from showing that the nurse failed to pass the nursing board examination, as such evidence was irrelevant, and even if it could be said that the evidence had any probative value, it was substantially outweighed by the danger of undue prejudice. Snider v. Basilio, 281 Ga. 261, 637 S.E.2d 40 (2006).

Arbitration proceedings.

- Upon certiorari review, the Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata, as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 638 S.E.2d 302 (2006).

Action under Dram Shop Act.

- Upon certiorari review, given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia's Dram Shop Act, O.C.G.A. § 51-1-40(b), the trial court erred in granting summary judgment to an injured party's guardian, as the tavern's manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern's intoxicated patron's would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29 (2007).

Cited in Fuller v. Arnold, 64 Ga. 599 (1880); Hendrix & McBurney v. Mason, 70 Ga. 523 (1883); Hester v. Keller, 74 Ga. 369 (1884); Baker & Lawrence v. McDaniel, 87 Ga. 18, 13 S.E. 130 (1891); Mohrman v. City Council, 103 Ga. 841, 31 S.E. 95 (1898); Hamilton & Co. v. Phenix Ins. Co., 107 Ga. 728, 33 S.E. 705 (1899); New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 60 S.E. 828 (1908); American Inv. Co. v. Cable Co., 4 Ga. App. 106, 60 S.E. 1037 (1908); Foley & Williams Mfg. Co. v. Bell & Harrell, 4 Ga. App. 447, 61 S.E. 856 (1908); Sanford v. Wade, 17 Ga. App. 366, 86 S.E. 945 (1915); Le Bron v. Stewart, 26 Ga. App. 133, 105 S.E. 650 (1921); Roberts v. Selman, 34 Ga. App. 171, 128 S.E. 694 (1925); King v. Gafford, 43 Ga. App. 452, 159 S.E. 292 (1931); Howard v. Boone, 45 Ga. App. 356, 164 S.E. 470 (1932); Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932); Deep v. De Vane, 49 Ga. App. 323, 175 S.E. 386 (1934); Roberts v. Citizens Bank, 62 Ga. App. 584, 8 S.E.2d 900 (1940); Brooks v. Arline, 68 Ga. App. 791, 24 S.E.2d 230 (1943); Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946); Delinski v. Dunn, 206 Ga. 825, 59 S.E.2d 248 (1950); Taylor v. City of Atlanta, 84 Ga. App. 739, 67 S.E.2d 143 (1951); Palmer Tire Co. v. Maxwell Bros. Furn. Co., 99 Ga. App. 87, 107 S.E.2d 695 (1959); Yield, Inc. v. City of Atlanta, 145 Ga. App. 172, 244 S.E.2d 32 (1978); Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

Bond

1. In General

Provisions of subsection (a) are mandatory. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).

Bond must be given and approved before writ issues.

- Writ of certiorari in civil case, unless sued out in forma pauperis, is void if the writ be issued before applicant has given bond prescribed. Before writ of certiorari can properly issue it must appear from record that the writ has been duly approved, and to be duly approved the writ must, among other things, be approved before writ of certiorari issues. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).

Bond is condition precedent to issuance of writ, but not to sanction of petition for certiorari. Smith v. McCranie, 14 Ga. App. 721, 82 S.E. 307 (1914); Gragg Lumber Co. v. Collins, 37 Ga. App. 76, 139 S.E. 84 (1927).

Bond is required when pauper affidavit is not filed. Simon v. Mayor of Savannah, 4 Ga. App. 171, 60 S.E. 1036 (1908); Tuten v. Showalter, 14 Ga. App. 690, 82 S.E. 154 (1914); Belk v. Cannon, 19 Ga. App. 487, 91 S.E. 790 (1917).

Certiorari bond need not be under seal. A.R. King & Co. v. Cantrell, 4 Ga. App. 263, 61 S.E. 144 (1908).

Bond is not void because the bond includes provision not authorized by section. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).

Bond complying with section need not bind parties to pay stated penal sum.

- When condition of bond complies with provisions of this section, fact that the bond does not bind parties to pay stated penal sum does not vitiate the bond. Bank of Am. Nat'l Trust & Sav. Ass'n v. Reserve Life Ins. Co., 90 Ga. App. 332, 83 S.E.2d 66 (1954).

Bond providing for payment of future costs, but not for recovery sought.

- When plaintiff in certiorari has paid accrued costs and given bond providing for payment of all future costs, but not providing for payment of eventual condemnation money, the plaintiff has substantially complied with statute. Hartsfield Co. v. Luddy, 45 Ga. App. 507, 165 S.E. 452 (1932) (see O.C.G.A. § 5-4-2).

Bond providing penalty for less than amount sought as award.

- When bond pursuant to section provides for penalty of $20.00 and $20.00 is insufficient to meet sum sought as award, bond is insufficient and certiorari should be dismissed. Gullatt v. Blakenship, 42 Ga. App. 139, 155 S.E. 353 (1930).

Party taking bond cannot delegate right under subsection (b) to justification by surety.

- When party taking bond is State Personnel Board, by a majority of the board's members, nothing in the law gives it the right to delegate the board's right to justification by surety to any other officer. The board alone has power to approve or disapprove bond, and such authority cannot be exercised even by judge of superior court, or by clerk of trial court. When there is no approval of bond by judicial officer, writ must be dismissed. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).

Best way to show that proper bond has been given is to attach to petition a certified copy of the bond, with certificate of approval by proper officer, and allege affirmatively that bond was given and approved as required by law. Beard v. City of Atlanta, 91 Ga. App. 584, 86 S.E.2d 672 (1955).

Bond filed with first petition does not meet requirements of law as to a second petition. Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 262 S.E.2d 481 (1979).

2. Execution and Attestation

Certiorari bond may be executed by an agent. Porterfield v. City of La Grange, 60 Ga. App. 646, 4 S.E.2d 732 (1939).

Authority of agent to sign bond will be presumed, unless rebutted. Georgia-Alabama Bus. College v. Constitution Publishing Co., 8 Ga. App. 348, 69 S.E. 34 (1910).

Agent or attorney authorized to represent party in case may give bond.

- Bond shall be given by party personally, or by the party's agent, either general or special, who is authorized to represent party in that particular case, or by attorney whose employment includes services in that case or who is authorized by party to give bond. Alabama M. Ry. v. Stevens, 116 Ga. 790, 43 S.E. 46 (1902).

Bond must be signed by surety.

- When bond given by plaintiff in certiorari was not signed by any person or corporation as surety, the only signature thereto being that of principal (the plaintiff in certiorari), bond given did not meet requirements of section. Gleason v. Burgess, 46 Ga. App. 486, 167 S.E. 916 (1933).

When agent of surety signs bond, authority must expressly appear.

- When on certiorari from trial court, certiorari bond is signed by one as agent for surety named thereon, authority of such agent must expressly appear. Taylor v. City of Atlanta, 84 Ga. App. 739, 67 S.E.2d 143 (1951); Edwards v. City of Atlanta, 88 Ga. App. 329, 76 S.E.2d 635 (1953).

When plaintiff sues on non-severable cause of action, both parties must sign bond, absent authority to the contrary. Harwell v. Marshall, 125 Ga. 451, 54 S.E. 93 (1906).

When corporation is surety, bond signed by the corporation's attorney must be accompanied by power of attorney. Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946).

Bond for partnership.

- When applicant for writ of certiorari is a partnership and bond required by section is not signed in firm name, nor by one professing to act for the partnership, proceedings are void. Camp, Saunders & Co. v. Bacon Fruit Co., 117 Ga. 149, 43 S.E. 425 (1903).

Commercial notary may attest signatures to certiorari bond. Hendrix & McBurney v. Mason, 70 Ga. 523 (1883).

Any attesting officer may witness a certiorari bond. Southern Ry. v. Oliver, 13 Ga. App. 5, 78 S.E. 684 (1913).

3. Approval

Bond must be approved by judge or justice of court in which case was originally tried. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).

Approval of bond required.

- Bond given under section, to render the bond effectual, must in some manner be approved by judge or justice of court in which case was originally tried. Stover v. Doyle, 114 Ga. 85, 39 S.E. 939 (1901).

Applicability to petitions from appellate division of municipal court of Atlanta.

- There being no special provision of law for any different procedure governing manner in which application for issuance of writ of certiorari may be made when directed to presiding judge of appellate division of Municipal Court of Atlanta, the bond required of petitioner in such a case must be properly and duly approved by presiding magistrate as condition precedent to issuing of writ of certiorari. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).

Trial judge must certify that amount of bond is approved and costs have been paid.

- Under this section, it is necessary that in all applications for certiorari in civil cases bond be given in amount approved by trial judge and that such judge certify under the judge's own signature that bond has been approved and that costs have been paid; otherwise, certiorari is void. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757, 120 S.E.2d 674 (1961).

Fact of approval of bond given under section, must appear upon papers themselves. State v. Wynne, 4 Ga. App. 719, 62 S.E. 499 (1908).

Approval may appear on face of bond. Dykes v. Twiggs County, 115 Ga. 698, 42 S.E. 36 (1902); Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83, 102 S.E. 460 (1920).

Bond cannot be approved by anyone other than judge or justice of trial court. Southern Ry. v. Oliver, 13 Ga. App. 5, 78 S.E. 684 (1913).

Clerk of court cannot approve bond. Tippins v. De Loach, 9 Ga. App. 362, 71 S.E. 497 (1911).

Approval of bond by clerk, or certification by clerk or other officer that costs have been paid, is insufficient. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757, 120 S.E.2d 674 (1961).

Commercial notary public cannot approve bond. Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83, 102 S.E. 460 (1920).

Magistrate's statement that bond and security has been given.

- Statement by trial magistrate in the magistrate's certificate to petition for certiorari, that the petitioner has given bond and security as required by law, is not an equivalent, nor a sufficient substitute, for the magistrate's approval of a certiorari bond. If bond is unapproved at date of the bond's filing with the petition, the bond is insufficient to authorize the clerk to issue a writ, and no subsequent approval which might be implied from the magistrate's certificate or otherwise can cure a deficiency. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).

No subsequent action approving or ratifying bond will save certiorari from dismissal. State v. Wynne, 4 Ga. App. 719, 62 S.E. 499 (1908); Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).

Costs

Hearing officer could not waive bond requirement.

- Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381, 620 S.E.2d 616 (2005).

1. In General

Requirement that costs be paid is intended for protection of officers. Johns v. Lewis Drug Co., 120 Ga. 640, 48 S.E. 127 (1904).

Costs must be paid, not merely deposited. Abrahams v. Ryan, 61 Ga. 597 (1878).

Costs include costs accrued on trial resulting in verdict excepted to, but not costs accrued on previous hearings. Johns v. Lewis Drug Co., 120 Ga. 640, 48 S.E. 127 (1904); Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418, 121 S.E. 854 (1923).

2. Certificate

Writ may be sanctioned, although certificate of payment of costs is not filed. Fuller v. Arnold, 64 Ga. 599 (1880).

Applicability to Municipal Court of Atlanta.

- There is nothing in act creating Municipal Court of Atlanta, or in any of the Acts amendatory thereof, which could be taken to change rule with respect to necessity of signing certificate as to costs by officer whose decision is subject-matter of complaint. Thoms v. John R. Thompson Co., 38 Ga. App. 779, 145 S.E. 533 (1928).

No certificate of payment of costs is required in forcible entry and detainer case. Taylor v. Gay, 20 Ga. 77 (1856).

Certificate not required when second writ of certiorari was procured under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61), when the first writ in the same case was dismissed. Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418, 121 S.E. 854 (1923).

Receipt of costs may satisfy requirement of certificate that costs have been paid. Western & Atl. R.R. v. Carder, 120 Ga. 460, 47 S.E. 930 (1904).

Statements held insufficient.

- Mere statement that costs of certiorari in municipal court have been paid is insufficient. Osborn v. Osborn, 70 Ga. 716 (1883).

Statement that all costs but three dollars allowed to garnishee for answering garnishment was insufficient. Buchanan v. Satterwhite, 22 Ga. App. 23, 95 S.E. 309 (1918).

Certificate made by clerk of court is insufficient. Davis v. Joiner, 1 Ga. App. 106, 58 S.E. 62 (1907).

Judge of superior court did not err in dismissing petition for certiorari which was accompanied by certificate as to payment of costs, signed only by deputy clerk of municipal court. Thoms v. John R. Thompson Co., 38 Ga. App. 779, 145 S.E. 533 (1928).

Affidavit of Indigence

1. In General

Language of subsection (c) is plain and mandatory. Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).

Writ of certiorari may be sanctioned even when improper affidavit has been filed with the clerk, but valid writ of certiorari may not issue in such case. Smith v. McCranie, 14 Ga. App. 721, 82 S.E. 307 (1914).

2. Contents

What must affidavit state.

- Affidavit should allege that owing to poverty affiant is unable to give required security; merely stating that affiant is unable to give security, as required by law, is not sufficient. Roberts v. Selman, 34 Ga. App. 171, 128 S.E. 694 (1925).

Affidavit must state applicant is advised and believes applicant has good cause.

- When affidavit in lieu of bond does not recite that applicant is advised and believes that the applicant has good cause for certiorari application is not sustainable. Williams v. Williams, 117 Ga. App. 161, 159 S.E.2d 456 (1968).

Omission of declaration in pauper affidavit that applicant "is advised" renders affidavit fatally defective. Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932).

Affidavit must state affiant is advised and believes the affiant has good cause for certiorari. Dorsey v. Black, 55 Ga. 315 (1875); Belk v. Cannon, 19 Ga. App. 487, 91 S.E. 790 (1917).

Applicant making affidavit stating only inability to pay costs.

- When applicant for certiorari does not pay costs and give bond with security or make affidavit that owing to the applicant's poverty the applicant was unable to pay costs or give security, but makes affidavit only that the applicant is unable to pay costs, the judge of superior court may properly dismiss certiorari. Quinn v. O'Neal, 57 Ga. App. 248, 194 S.E. 911 (1938).

Affidavit stating party is unable to pay costs "and" rather than "or" give security is insufficient and writ issued in such case should be dismissed. Hackett v. Tate, 18 Ga. App. 453, 89 S.E. 535 (1916).

Writ of certiorari is void when pauper affidavit allowed in lieu of bond uses conjunctive "and," the pauper is unable to pay costs and give security instead of disjunctive "or," as required by section. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267 (1934).

3. Who May Make Affidavit

Minor with sufficient discretion may make a pauper affidavit. Bowers v. Kanaday, 94 Ga. 209, 21 S.E. 458 (1894).

Agent cannot make a pauper affidavit. Hadden v. Larned, 83 Ga. 636, 10 S.E. 278 (1889).

Attorney at law cannot make a pauper affidavit. Selma, R. & D.R.R. v. Tyson, 48 Ga. 351 (1873).

Personal affidavit of partner cannot operate in favor of firm. Marlow & Bro. v. Hughes Lumber Co., 92 Ga. 554, 17 S.E. 922 (1893).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 72 et seq.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, § 53 et seq.

ALR.

- Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant, 11 A.L.R.2d 607.

What costs or fees are contemplated by statute authorizing proceeding in forma pauperis, 98 A.L.R.2d 292.

5-4-6. Time for application for writ; filing of petition; service of petition and writ.

  1. All writs of certiorari shall be applied for within 30 days after the final determination of the case in which the error is alleged to have been committed. Applications made after 30 days are not timely and shall be dismissed by the court.
  2. The certiorari petition and writ shall be filed in the clerk's office within a reasonable time after sanction by the superior court judge; and a copy shall be served on the respondent, within five days after such filing, by the sheriff or his deputy or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail; and service shall be shown by acknowledgment or by certificate of the counsel or person perfecting the service.

(Laws 1838, Cobb's 1851 Digest, p. 528; Laws 1850, Cobb's 1851 Digest, p. 529; Ga. L. 1855-56, p. 233, § 16; Ga. L. 1858, p. 88, § 1; Code 1863, §§ 2861, 3965; Code 1868, §§ 2869, 3985; Code 1873, §§ 2920, 4057; Code 1882, §§ 2920, 4057; Ga. L. 1889, p. 84, § 1; Civil Code 1895, §§ 3771, 4642; Civil Code 1910, §§ 4365, 5188; Ga. L. 1924, p. 59, §§ 1, 2; Code 1933, §§ 19-209, 19-210; Ga. L. 1961, p. 190, §§ 2, 3.)

Law reviews.

- For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).

JUDICIAL DECISIONS

General Consideration

Editor's note.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 19-212 are included in the annotations of this Code section.

Dismissal proper when respondent does not answer.

- In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. Ý 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. Ý 5-4-7, dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. Ý 5-4-3. Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304, 840 S.E.2d 708 (2020).

Cited in Gregory v. Daniel & Son, 93 Ga. 795, 20 S.E. 656 (1894); Carson v. Mayor of Forsyth, 97 Ga. 258, 22 S.E. 955 (1895); Seagraves v. W.E. Powell Co., 143 Ga. 572, 85 S.E. 760 (1915); Hudson v. State, 21 Ga. App. 507, 94 S.E. 645 (1917); Bull & Son v. Armour Fertilizer Works, 26 Ga. App. 151, 105 S.E. 616 (1921); Johnson v. Barrett, 26 Ga. App. 781, 107 S.E. 168 (1921); Kirkland v. Luke, 30 Ga. App. 203, 117 S.E. 259 (1923); Russell v. Kennington, 160 Ga. 467, 128 S.E. 581 (1925); Towery v. City of McCaysville, 38 Ga. App. 85, 142 S.E. 702 (1928); Jordan v. State, 172 Ga. 857, 159 S.E. 235 (1931); Hudson v. Higgins, 45 Ga. App. 358, 164 S.E. 688 (1932); Nalley & Co. v. Moore, 51 Ga. App. 718, 181 S.E. 429 (1935); Quinn v. O'Neal, 58 Ga. App. 628, 199 S.E. 359 (1938); Howard v. Williams, 72 Ga. App. 822, 35 S.E.2d 389 (1945); Washburn v. Thompson, 78 Ga. App. 133, 50 S.E.2d 761 (1948); Taylor v. Golian Steel & Iron Co., 86 Ga. App. 639, 72 S.E.2d 196 (1952); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954); Hipp v. City of East Point, 105 Ga. App. 775, 125 S.E.2d 672 (1962); Allison v. City of Atlanta, 109 Ga. App. 114, 135 S.E.2d 524 (1964); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Barrett v. City of Chamblee, 117 Ga. App. 205, 160 S.E.2d 278 (1968); Bellew v. State Hwy. Dep't, 127 Ga. App. 301, 193 S.E.2d 202 (1972); Goldstein v. Smith, 141 Ga. App. 493, 233 S.E.2d 864 (1977); Schaffer v. City of Atlanta, 144 Ga. App. 702, 242 S.E.2d 288 (1978); Williams v. Brownlee, 147 Ga. App. 831, 250 S.E.2d 567 (1978); Fulton County v. Williams, 150 Ga. App. 496, 258 S.E.2d 155 (1979); Mulling v. Wilson, 245 Ga. 773, 267 S.E.2d 212 (1980); Kaplan v. City of Atlanta, 158 Ga. App. 58, 279 S.E.2d 307 (1981); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983); City of Atlanta v. Houston, 221 Ga. App. 61, 471 S.E.2d 12 (1996); Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008); City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135, 789 S.E.2d 386 (2016); Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, 2018 Ga. LEXIS 236 (Ga. 2018); Hous. Auth. of Augusta v. Gould, 305 Ga. 545, 826 S.E.2d 107 (2019); Amazing Amusements Group, Inc. v. Wilson, 353 Ga. App. 256, 835 S.E.2d 781 (2019); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

Time for Filing Application

1. In General

Provisions of subsection (a) are mandatory.

- Provisions of section are absolute and mandatory in respect of time within which writs of certiorari shall be applied for, and cannot be varied or departed from in exercise of any judicial discretion. Hitt v. City of Atlanta, 103 Ga. App. 717, 120 S.E.2d 339 (1961).

Petition must be presented within thirty days from rendition of verdict, if the petition does not complain of error in dismissing motion for new trial. Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422, 115 S.E. 924 (1923).

Application for writ of certiorari must be made within 30 days of final determination of case in inferior court. Eisenberg v. Fuller, 148 Ga. App. 603, 252 S.E.2d 17 (1979).

Failure to obtain the requisite sanction from the appropriate judge is not an amendable defect if the 30-day time requirement for applying for certiorari under O.C.G.A. § 5-4-6(a) has expired. Cobb County v. Herren, 230 Ga. App. 482, 496 S.E.2d 558 (1998).

Although a trial court's decision to dismiss an action by dismissed city employees was erroneously based on the court's determination that the employees had failed to exhaust their administrative remedies from their claim that the reduction-in-force ordinance, Atlanta, Ga., Code § 114-55, was not properly followed, as they had properly appealed to the Service Board and the Board had denied their claims on appeal, the dismissal was proper for other reasons; after the Board's final decision denying the employees' appeals, the employees failed to properly and timely file a writ of certiorari in the trial court pursuant to O.C.G.A. §§ 5-4-1(a) and5-4-6 in order to obtain review of that decision. Jordan v. City of Atlanta, 283 Ga. App. 285, 641 S.E.2d 275 (2007).

When judgment is not final, subsequent judgments pertaining to it are not final.

- When verdict and judgment rendered in Municipal Court of Atlanta is not a final judgment, neither judgment of trial judge overruling motion for new trial excepting to such verdict and judgment, nor judgment of appellate division of that court affirming such judgment of trial judge, is a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).

Filing of mandamus action does not excuse compliance with section.

- Because certiorari and mandamus are completely different remedies as to subject matter, procedure, and nature of relief, filing a mandamus action does not excuse compliance with requirements of this section. Richardson v. Rector, 134 Ga. App. 116, 213 S.E.2d 488 (1975).

Mandamus not appropriate remedy for homeowners denied building permit.

- Mandamus was not the appropriate remedy for homeowners whose building permit had been denied by a city; rather, the homeowners were required to pursue the homeowners' appeal through the filing of a petition for a writ of certiorari, pursuant to Statesboro, Ga., Zoning Ordinance § 1809 and O.C.G.A. § 5-4-1(a); moreover, the homeowners' appeal was untimely under O.C.G.A. § 5-4-6(a). City of Statesboro v. Dickens, 293 Ga. 540, 748 S.E.2d 397 (2013).

Section does not deal with means of preserving exceptions to trial court rulings.

- This section merely limits time after final judgment in which writ of certiorari may be applied for, but does not attempt to go into manner in which exceptions to orders and rulings prior to final judgment may be preserved. Taylor v. Golian Steel & Iron Co., 86 Ga. App. 639, 72 S.E.2d 196 (1952).

Certiorari from appeals in justice's court are from jury verdict.

- It is from verdict of jury in appeal cases in justice's court that certiorari may be taken, not from judgment which justice may enter thereon. Western & A.R.R. v. Carson, 70 Ga. 388 (1883).

Fact of timely application must appear from record, unless answer of justice verifies that fact. Duke v. Story, 113 Ga. 112, 38 S.E. 337 (1901); Landrum v. Moss, 1 Ga. App. 216, 57 S.E. 965 (1907).

Section governs time for second application when first application dismissed for noncompliance.

- When application for certiorari is a nullity, because of failure to comply with the requirement as to bond, time within which second application may be made was governed by former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6), and was not extended by law as to renewal of cases within six months after dismissal under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61). Tuten v. Showalter, 14 Ga. App. 690, 82 S.E. 154 (1914); Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422, 115 S.E. 924 (1923).

Renewal of previously dismissed, but timely certiorari in same cause.

- When certiorari is applied for after expiration of statutory period from date of judgment complained of, petition should show on the petition's face that the petition is a renewal of a previously dismissed certiorari sued out within proper time in same cause, and that renewal is within six months from date of dismissal of previous certiorari. Unless all of these facts appear in petition for certiorari, the judge of superior court has no jurisdiction of case, and should refuse to sanction petition; and, if such petition is sanctioned, it should be dismissed when proper motion therefor is made upon hearing of certiorari. Smith v. City of Atlanta, 48 Ga. App. 853, 174 S.E. 171 (1934).

Valid writ of error suspends running of time limit for application for writ of certiorari. Gavant v. Berger, 51 Ga. App. 628, 181 S.E. 210 (1935).

Time ran from denial of motion to set aside default judgment, not default judgment itself.

- In a dispute between a seller of storage units and the buyer's spouse, resulting in a default judgment for the seller in magistrate court, the superior court erred in dismissing the spouse's petition for certiorari as untimely because the petition was filed within 30 days of the denial of the spouse's motion to set aside as required by O.C.G.A. § 5-4-6(a); it was not required that the motion be filed within 30 days of the default judgment. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332, 825 S.E.2d 817 (2019).

Timely petition was improperly dismissed.

- Superior court improperly dismissed as untimely appellant city's petition for a writ of certiorari challenging a civil service board's decision as the petition was timely filed for purposes of O.C.G.A. § 5-4-6(a) since: (1) the last day to file the petition fell on Thanksgiving Day; (2) the Friday after Thanksgiving day, like Thanksgiving day, was a legal holiday as set forth in O.C.G.A. § 1-4-1; and (3) the petition was filed on the very next business day, as allowed by O.C.G.A. § 1-3-1(d)(3). City of Atlanta v. Hector, 256 Ga. App. 665, 569 S.E.2d 600 (2002).

Eleventh of November, although a legal holiday, is included in computing 30-day period.

- In computing 30 days within which petition for certiorari must be presented eleventh of November, although a legal holiday and last day, must be included. Freeman v. Beneficial Loan Soc'y, 42 Ga. App. 294, 155 S.E. 786 (1930).

2. What Are Final Judgments

Writ of certiorari lies only after rendition of judgment making final disposition of case, and then only to correct errors which affect such final judgment. It does not lie to correct errors affecting only judgment which is not final. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).

Writ of certiorari lies only after rendition of final judgment. Hayes v. Brown, 205 Ga. 234, 52 S.E.2d 862 (1949).

Final disposition of case in inferior court is prerequisite to writ of certiorari. Singer Mfg. Co. v. McNeal Paint & Glass Co., 117 Ga. 1005, 44 S.E. 801 (1903).

Absent final judgment, court is correct in refusing to act.

- When there has been no final judgment rendered by the state court, the superior court is correct in refusing to exercise the superior court's supervisory powers through a writ of certiorari. Attwell v. Sears Roebuck & Co., 159 Ga. App. 811, 285 S.E.2d 199 (1981).

Judgment of justice of peace, refusing to allow amendment to petition is not final determination. Felker v. Freeman, 46 Ga. App. 767, 169 S.E. 247 (1933).

Verdict and judgment against special plea of no partnership is not a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).

Judgment sustaining motion to dismiss and granting leave to amend is not final judgment, judgment sustaining demurrer (now motion to dismiss) to petition, which grants leave to plaintiff to amend on pain of dismissing suit, is not a final judgment, and certiorari does not lie thereto. Massengale v. Colonial Hill Co., 34 Ga. App. 807, 131 S.E. 299 (1926).

Notice

Service on the opposite party within five days is mandatory and in the absence of such service the application for certiorari is properly dismissed. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).

Provisions for notice to opposite party are mandatory. Glover v. Berry Sch., 90 Ga. App. 232, 83 S.E.2d 22 (1954);(decided under former Code 1933, § 19-212).

Notice to opposite party is required unless prevented by unavoidable cause or waived in writing.

- Notice to be given to opposite party in interest, that party's agent, or attorney, unless prevented by unavoidable cause or unless waived in writing, and when such notice is not given and it is not shown to be due to unavoidable cause, certiorari shall be dismissed unless waived in writing. Attebery v. City of Manchester, 76 Ga. App. 265, 45 S.E.2d 781 (1947);(decided under former Code 1933, § 19-212).

Service must be made diligently.

- Although an employee failed to serve the city with a copy of a petition for certiorari within five days as required by O.C.G.A. § 5-4-6(b), the trial court was required to determine whether service was made in a reasonable and diligent manner to effectuate service as quickly as possible. Mangram v. City of Brunswick, 324 Ga. App. 725, 751 S.E.2d 523 (2013).

Failure to serve writ on judge whose decision is to be reviewed.

- When it appears that the writ of certiorari has not been served upon the judge, or other officer whose decision is sought to be reviewed, 15 days previous to the term of court to which the return is to be made, the proceeding should be dismissed, unless it clearly appears that the failure to serve was in no way attributable to the fault of the party making application for the writ. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).

Failure to serve judge, not basis for dismissal.

- Failure to properly serve respondent, a municipal court judge whose decision was being reviewed, was not a basis for dismissal when the judge made a general appearance and addressed the merits of the case. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).

Failure to serve city.

- "Opposite party" in a case of certiorari from a municipal court was the city, not the municipal court judge, and failure to serve the city warranted dismissal of the petition. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).

Superior court erred in denying the city board of appeals' motion to dismiss a petition for writ of certiorari because the service of the original petition upon the city attorney was not sufficient service upon the city as an opposite party when the city was not named as the opposite party, and only the board and the board's members were named in the original petition as the board (as respondent) and the city (as the proper opposite party) were two separate entities with possibly conflicting interests. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).

Failure to serve board.

- Superior court did not err in dismissing petition for certiorari from a decision of the Atlanta Civil Service Board, since the board was not named as a party as required by subsection (b) of O.C.G.A. § 5-4-6, and service of the petition on the City of Atlanta was not service on the City of Atlanta Civil Service Board as a matter of law. Fisher v. City of Atlanta, 212 Ga. App. 635, 442 S.E.2d 762 (1994).

Although the city board of appeals was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, the superior court erred in denying the board's motion to dismiss because there was a failure to comply with the statutory requirements as no writ had been issued and served; and, while it was the clerk's duty to issue the writ, it was also separately the duty of the petitioner or the petitioner's counsel to ensure that a writ was served, and the petitioner could not completely divorce itself from the failure that occurred in the current case. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).

Superior court erred in denying the city board of appeals' motion to dismiss a petition for writ of certiorari because there was a complete failure to even issue a writ of certiorari, let alone serve the same upon the board as the respondent; and the petitioner failed to name the city as an opposite party, and failed to serve the city with a copy of the petition and with a copy of the writ in the time required. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).

O.C.G.A. § 5-4-10 may not be utilized to permit service beyond time permitted in O.C.G.A. § 5-4-6. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).

It is the actual filing of petition in clerk's office which gives the petition validity, but the petition cannot have any validity as such unless the petition is actually filed with the custodian upon whom the law casts duty of receiving the petition. Hunter v. City of Blue Ridge, 79 Ga. App. 719, 54 S.E.2d 510 (1949).

Giving of required notice must affirmatively appear from certiorari proceedings.

- When it does not affirmatively appear from certiorari proceedings that required notice or a waiver thereof was given, proceedings are fatally defective, and superior court does not err in overruling and denying petition for certiorari. Williams v. State, 91 Ga. App. 124, 85 S.E.2d 91 (1954).

Personal service upon respondent is required. Gornto v. City of Brunswick, 119 Ga. App. 673, 168 S.E.2d 323 (1969).

Failure to comply with subsection (b) renders petition and writ invalid.

- When certiorari was dismissed for want of compliance with provisions of former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6), petition for certiorari and writ of certiorari were invalid, and for this reason there was no case pending which could be recommenced within six months as provided in § 9-2-61. Butters Mfg. Co. v. Sims, 47 Ga. App. 648, 171 S.E. 162 (1933) (decided under former Code 1933, § 19-210, prior to amendment by Ga. L. 1961, p. 190, § 3, now embodied in subsection (b) of O.C.G.A. § 5-4-6).

Jurisdiction over appeal from dismissal of petition for failure of service.

- When sole question for review on appeal is dismissal of petition for certiorari because of failure of service, the Court of Appeals has jurisdiction of the appeal. Gornto v. City of Brunswick, 225 Ga. 128, 166 S.E.2d 349 (1969).

Failure to give notice to opposite party shall be mandatory ground for dismissal of certiorari unless prevented by unavoidable cause, or unless waived. Glover v. Berry Sch., 90 Ga. App. 232, 83 S.E.2d 22 (1954);(decided under former Code 1933, § 19-212).

Failure to give notice to opposite party is fatal to proceedings and subjects the proceedings to dismissal at any time before final judgment. Goldberg v. City of Atlanta, 71 Ga. App. 269, 30 S.E.2d 661 (1944);(decided under former Code 1933, § 19-212).

Acknowledgment of service does not estop one from claiming service was untimely.

- Mere acknowledgment of service of notice of sanction of writ of certiorari does not estop person making acknowledgment from setting up that the same was, under the law relating thereto, served too late. Scott v. State, 75 Ga. App. 684, 44 S.E.2d 391 (1947);(decided under former Code 1933, § 19-212).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 52 et seq.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, §§ 30 et seq., 41 et seq., 61 et seq.

ALR.

- Applicability of statute of limitations or doctrine of laches to certiorari, 40 A.L.R.2d 1381.

5-4-7. Time for filing of answer; manner of service; effect of failure to perfect service.

The answer to the writ of certiorari shall be filed in the clerk's office within 30 days after service thereof on the respondent unless further time is granted by the superior court. A copy of the answer shall be mailed or delivered to the petitioner by the respondent or by the clerk of the superior court. Failure to perfect service shall be grounds for continuance but shall not otherwise affect the validity of the proceedings.

(Orig. Code 1863, § 3969; Code 1868, § 3989; Code 1873, § 4061; Code 1882, § 4061; Civil Code 1895, § 4646; Civil Code 1910, § 5195; Ga. L. 1918, p. 124, §§ 1, 2; Code 1933, § 19-301; Ga. L. 1961, p. 190, § 5.)

JUDICIAL DECISIONS

General Consideration

Answer provides source of facts of case and rulings for reviewing court.

- In certiorari case, answer of trial judge is only source from which knowledge of facts of case and rulings therein can be derived by reviewing court. Adams v. Bishop, 46 Ga. App. 32, 166 S.E. 460 (1932).

Only answer of justice embodies and can identify evidence before jury in the justice's court. Akridge v. Watertown Steam Engine Co., 77 Ga. 50 (1886).

If answer is not traversed, the answer becomes part of record. Mossman v. McKinley, 67 Ga. 391 (1881).

Burden is on applicant to cause timely answer by magistrate.

- Burden is on applicant for certiorari to cause magistrate's answer to be filed within 30 days of service. Schaffer v. City of Atlanta, 151 Ga. App. 1, 258 S.E.2d 674 (1979), rev'd on other grounds, 245 Ga. 164, 264 S.E.2d 6 (1980).

Petition shall not be dismissed for insufficient affidavit when answer supports petition.

- That affidavit in support of petition for certiorari is insufficient is no ground for dismissal after certiorari has been answered, if answer supports petition. Taylor v. Gay, 20 Ga. 77 (1856).

Dismissal under section due to petitioner's failure to act timely.

- When plaintiff in certiorari was at fault, in failing to make appropriate motion in due time, and dismissal under former Code 1933, § 19-301 (see O.C.G.A. § 5-4-7) results from this fault, and not from bare failure of judge to file the judge's answer, such dismissal will not be affected by former Code 1933, § 19-502 (see O.C.G.A. § 5-4-15), which provided that when the trial judge dies before making the judge's answer to certiorari filed on the judge, a new trial will be granted. Mathis v. City of Nashville, 49 Ga. App. 309, 175 S.E. 383 (1934).

Dismissal proper when respondent does not answer.

- In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. Ý 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. Ý 5-4-7, dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. Ý 5-4-3. Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304, 840 S.E.2d 708 (2020).

Authority of trial court to grant extension of time to file answer.

- Trial court did not err by failing to dismiss the petition for writ of certiorari because the board failed to file the board's answer within 30 days of service of the writ as required by O.C.G.A. Ý 5-4-7 as due to alleged technical difficulties with the electronic filing system, the board was unable to file the answer by the deadline and it was within the trial court's authority to grant the extension of time to the board to file the board's answer. Milani v. Irwin, 354 Ga. App. 218, 840 S.E.2d 700 (2020).

Cited in Bunn v. Henderson, 113 Ga. 609, 39 S.E. 78 (1901); Daniels v. State, 118 Ga. 18, 44 S.E. 818 (1903); Sutton v. State, 120 Ga. 865, 48 S.E. 342 (1904); J.M. High Co. v. Georgia Ry. & Power Co., 12 Ga. App. 505, 77 S.E. 588 (1913); Carroll v. Upchurch, 25 Ga. App. 646, 104 S.E. 16 (1920); Heinz v. Backus, 34 Ga. App. 203, 128 S.E. 915 (1925); Galfas v. City of Atlanta, 88 Ga. App. 385, 76 S.E.2d 641 (1953); Allison v. City of Atlanta, 109 Ga. App. 114, 135 S.E.2d 524 (1964); Copeland v. White, 172 Ga. App. 198, 322 S.E.2d 523 (1984).

Content and Sufficiency of Answer

Return or answer must constitute verification or denial, from record or otherwise, of material assertions in petition. Herault v. Department of Human Resources, 137 Ga. App. 446, 224 S.E.2d 480 (1976).

Answer should contain evidence in case or adopt statement of evidence contained in petition for certiorari in whole or in part. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Sufficiency of answer is to be determined by whether it sufficiently verifies factual situation upon which alleged errors are predicated. Herault v. Department of Human Resources, 137 Ga. App. 446, 224 S.E.2d 480 (1976).

Answer substantially complying with section. Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Better practice when trial judge does not care to categorically admit or deny allegations of various paragraphs of petition for certiorari, but desires to stand on stenographic report of proceedings as truth of matters alleged, is in the judge's answer to each paragraph containing allegations as to evidence, objections of counsel, and rulings of the court, to quote pertinent part of report in reference to allegations made in each paragraph, instead of merely admitting allegations except insofar as the allegations may conflict with stenographic report attached. Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Answer from memory will suffice, if testimony was recollected. Colbert v. State, 118 Ga. 302, 45 S.E. 403 (1903); Harris v. Daly, 121 Ga. 511, 49 S.E. 609 (1904).

Original papers from trial court are not to be sent up on certiorari. Barfield v. McCombs, 89 Ga. 799, 15 S.E. 666 (1892).

Certificate of magistrate, required by former Civil Code 1910, §§ 5185, 5186, 5187 (see O.C.G.A. § 5-4-5) before sanction of certiorari will not operate as answer. Henry v. American Ry. Express Co., 25 Ga. App. 646, 104 S.E. 16 (1920).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 56 et seq.

5-4-8. Writing or dictation of answer by parties, attorneys, or interested persons; when verification required.

The answer shall not be written or dictated by either of the parties, or their attorneys, or any other person interested in the merits of the case. If made after the party making the same has retired from office, it shall be verified by affidavit.

(Orig. Code 1863, § 3971; Code 1868, § 3991; Code 1873, § 4063; Code 1882, § 4063; Civil Code 1895, § 4648; Civil Code 1910, § 5197; Code 1933, § 19-303.)

JUDICIAL DECISIONS

First sentence of section is mandatory. Lee v. Continental Cas. Co., 20 Ga. App. 714, 93 S.E. 262 (1917).

Section applies where a second answer is prepared by former counsel in case. Lee v. Continental Cas. Co., 20 Ga. App. 714, 93 S.E. 262 (1917).

Section inapplicable to refusal to answer. Zachery v. State, 106 Ga. 123, 32 S.E. 22 (1898).

Section does not prevent justice from adopting recitals of fact in petition. Davis v. Rhodes, 112 Ga. 106, 37 S.E. 169 (1900).

Retired police justice may perfect answer, although the justice is assistant city attorney, if not counsel in case. Phillips v. City of Atlanta, 87 Ga. 62, 13 S.E. 201 (1891).

Oral objection may lie to unverified affidavit. Love v. Bush, 21 Ga. App. 436, 94 S.E. 626 (1917).

Cited in Combs v. State, 9 Ga. App. 840, 72 S.E. 284 (1911); Blackwood v. City of Social Circle, 125 Ga. App. 676, 188 S.E.2d 823 (1972).

RESEARCH REFERENCES

C.J.S.

- 14 C.J.S., Certiorari, § 47 et seq.

5-4-9. Filing of traverse or exception to answer; perfection of answer.

The petitioner or defendant in certiorari may traverse or except to the answer of the respondent, which exceptions or traverse shall be filed in writing, specifying the defects, within 15 days after the filing of the answer; and, if the traverse or exceptions are sustained, the answer shall be perfected as directed by the court.

(Orig. Code 1863, § 3970; Code 1868, § 3990; Code 1873, § 4062; Code 1882, § 4062; Civil Code 1895, § 4647; Civil Code 1910, § 5196; Code 1933, § 19-302; Ga. L. 1961, p. 190, § 6.)

JUDICIAL DECISIONS

General Consideration

Distinction between function of exceptions and function of traverse.

- Function of exceptions to answer of magistrate to petition for certiorari is to specify defects in such answer, and such exceptions do not take place of traverse to answer whose function is to controvert truth of facts set forth in answer. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Traverse of answer of trial judge must be verified affidavit. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Absent traverse, answer is conclusive as to recital of facts.

- Upon trial of certiorari when judge's answer to petition is untraversed, judge of superior court must take as true the statement of facts and evidence adduced upon the trial of case as contained in an answer and in those portions of the petition for certiorari verified thereby as true. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Although the statute does not require that the answer be traversed, if no traverse is filed, the answer becomes conclusive as to recitals of fact contained therein, and the answer becomes the record on which the superior court is authorized to rule on the merits of the petition. Bembry v. Johnson, 152 Ga. App. 422, 263 S.E.2d 229 (1979).

Although a traverse to an answer is now optional, the recitals of fact contained in the answer are rendered conclusive when neither a traverse nor an exception is filed. This being so, the court is entitled to rely upon the factual recitals of the answer as a part of the record, and to use the recitals as a basis for the court's findings. Cox v. City of Lawrenceville, 168 Ga. App. 119, 308 S.E.2d 224 (1983).

Traverse and exception unnecessary when petition sufficiently establishes error and answer merely denies allegations.

- When facts sufficient to establish error are alleged in petition and inferior court files answer merely denying these allegations, issues are sufficiently developed for superior court review and exception and subsequent traverse to answer are no longer necessary. Williamson v. City of Tallapoosa, 238 Ga. 522, 233 S.E.2d 777 (1977).

Cited in Phillips v. City of Atlanta, 79 Ga. 510, 4 S.E. 256 (1887); Daniels v. State, 118 Ga. 18, 44 S.E. 818 (1903); Fulton Bag & Cotton Mills v. Booze, 8 Ga. App. 430, 69 S.E. 494 (1910); DeBerry v. Spikes, 188 Ga. 222, 3 S.E.2d 719 (1939); Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939); Boatright v. Moody, 210 Ga. 80, 77 S.E.2d 529 (1953); Ross v. City of Lilburn, 114 Ga. App. 428, 151 S.E.2d 490 (1966); Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974); Eisenberg v. Fuller, 148 Ga. App. 603, 252 S.E.2d 17 (1979); Willis v. Jackson, 163 Ga. App. 26, 293 S.E.2d 498 (1982).

Decisions Prior to 1961 Amendment

Editor's notes.

- The following decisions were rendered under this section as it read prior to amendment by Ga. L. 1961, p. 190, § 6, which added traverse (previously dealt with under a separate section) to its scope as well as a more specific time limit for filing of exceptions and traverse.

1. In General

Section prescribes method for correcting answer which omits evidence adduced upon trial.

- If answer is subject to correction because it does not contain evidence adduced upon trial, proper method to make the evidence adequate and complete in that respect is prescribed by this section. Loomis v. City of Atlanta, 82 Ga. App. 346, 60 S.E.2d 397 (1950).

Section prescribes exclusive means for perfecting incomplete answer.

- Section prescribes only means of perfecting answer and other relief cannot be granted to the plaintiff by the Supreme Court. Wyatt v. Turner, 40 Ga. 36 (1869); Stoner v. Magins, 116 Ga. 797, 43 S.E. 45 (1902); Tyner v. Leake, 117 Ga. 990, 44 S.E. 812 (1903).

Incomplete answer to writ of certiorari can be perfected only by exceptions taken thereto in manner prescribed by section. Macris v. Tsipourses, 35 Ga. App. 671, 134 S.E. 621 (1926).

Motion to dismiss answer will not lie to perfect it. Star Glass Co. v. Longley & Robinson, 64 Ga. 576 (1880).

Section provides remedy for both parties when answer of magistrate is not specific. Landrum v. Moss, 1 Ga. App. 216, 57 S.E. 965 (1907).

Written exceptions.

- If defendant in certiorari is dissatisfied with answer, the defendant should file written exceptions thereto. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

Answer binds plaintiff in certiorari, even though incomplete and insufficient, unless exceptions are filed in accordance with section. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936).

Absent proper exceptions or traverse to answer of trial magistrate allegations thereof are conclusive. Wadsworth v. Olive, 53 Ga. App. 539, 186 S.E. 590 (1936).

Requirements when dissatisfied with answer.

- Any party, dissatisfied with an answer to writ of certiorari must in due time either file exceptions thereto, or traverse same, and, failing to do either, is bound by recitals of fact contained in such answer. Davis v. Rhodes, 112 Ga. 106, 37 S.E. 169 (1900).

Absent exceptions, improper answer by trial judge will cause dismissal.

- When there is an improper or incomplete answer by a trial judge to petition for certiorari, the judge of the superior court will not continue hearing on certiorari until answer is perfected and certiorari will be dismissed, unless exceptions thereto have been filed as provided in this section. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936).

When answer does not show that final judgment was rendered, judge may dismiss proceeding. Southern Ry. v. Leggett & Co., 117 Ga. 31, 43 S.E. 421 (1903); Hill v. Anderson Banking Co., 18 Ga. App. 41, 88 S.E. 749 (1916).

Exceptions will lie only when omissions are material to proper decision of case. Hardy v. Hardy, 2 Ga. App. 530, 58 S.E. 779 (1907).

When omissions in answer are immaterial to proper decision of case, exceptions will be overruled. Baird v. Smith, 124 Ga. 251, 52 S.E. 655 (1905).

2. Timeliness of Exceptions

Exceptions must be filed before hearing. Bailey v. Ware & Harper, 17 Ga. App. 492, 87 S.E. 712 (1916), later appeal, 19 Ga. App. 255, 91 S.E. 282 (1917).

Exceptions, if not filed within time prescribed, must be stricken. Chandler v. Baggett, 13 Ga. App. 333, 79 S.E. 179 (1913).

When exceptions are not presented on time by plaintiff, dismissal is proper. Humphries v. Nalley, 14 Ga. App. 804, 82 S.E. 357 (1914).

3. Application

Exceptions must specify defects.

- Exceptions must be so definite, apt, and certain that magistrate may be able to understand exact nature of deficiency. Macris v. Tsipourses, 35 Ga. App. 671, 134 S.E. 621 (1926).

Section does not require that exceptions be verified by affidavit. Rumph v. Cleveland, 72 Ga. 189 (1883).

Party may except to judge's failure to send up copy of record.

- When copies of pleading and other part of record are not certified and sent up with answer, it is error to overrule exceptions. Stoufer v. Missenheimer, 26 Ga. App. 554, 106 S.E. 560 (1921), later appeal, 28 Ga. App. 350, 111 S.E. 692 (1922).

Failure to attach copy of proceedings, where answer indicates intention to do so.

- When, in certiorari proceeding, record does not show that any copy of proceedings was sent up with answer of trial judge, although statement of judge indicates intention to attach such papers, answer is incomplete in that respect. But if applicant for certiorari desires such information before superior court, it is the applicant's duty to except to the answer in order that the judge might be required to complete the answer. Beavers v. Cassells, 56 Ga. App. 146, 192 S.E. 249 (1937), aff'd, 186 Ga. 98, 196 S.E. 716 (1938).

Oral objection that answer of retired magistrate is not verified is sustainable. Love v. Bush, 21 Ga. App. 436, 94 S.E. 626 (1917).

Additional answer prepared before exceptions to original answer are sustained cannot become part of record, if objected to. Bailey v. Ware & Harper, 17 Ga. App. 492, 87 S.E. 712 (1916), later appeal, 19 Ga. App. 255, 91 S.E. 282 (1917).

When exceptions and traverse are both filed, court should dispose of exceptions first. Chandler v. Baggett, 13 Ga. App. 333, 79 S.E. 179 (1913).

5-4-10. Amendment of petition, bond, answer, and traverse.

Certiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.

(Code 1933, § 19-403, enacted by Ga. L. 1961, p. 190, § 9.)

Law reviews.

- For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).

JUDICIAL DECISIONS

Purpose of section.

- This section has for the statute's obvious purpose the curing of certain procedural defects inherent in former certiorari mechanism by allowing amendments at any stage of appeal. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).

Section inapplicable to filing of late answer.

- When motion to dismiss writ of certiorari preceded filing of late answer to petition for writ by respondent judge, dismissal is correct, since section does not apply to filing of a later answer. Schaffer v. City of Atlanta, 144 Ga. App. 702, 242 S.E.2d 288 (1978); City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).

Ga. L. 1961, p. 190, § 9 (see O.C.G.A. § 5-4-10) could not be utilized to permit service beyond time permitted in former Code 1933, §§ 19-209 and 19-210 (see O.C.G.A. § 5-4-6). City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).

Failure to serve cannot be cured by amendment.

- Failure to serve the opposite party is not a defect which can be cured by amendment under O.C.G.A. § 5-4-10. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).

Bond by amendment was invalid.

- Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381, 620 S.E.2d 616 (2005).

Right to amend found.

- Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss the petitioners' first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1, relying on the renewal statute codified at O.C.G.A. § 9-2-61(a), and file a second request after the 30-day limitation period had expired. Moreover, the petitioners had the right to amend the certiorari proceedings as to form or substance at any stage, including the right to amend, by substituting a valid bond for a void bond or no bond at all. Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008).

Application may be amended to show valid bond.

- Defendant convicted in municipal court of leaving the scene of an accident and driving without insurance failed to comply with the bond requirement in O.C.G.A. Ý 5-4-20(a) before the defendant filed the defendant's application for a writ of certiorari; however, under O.C.G.A. Ý 5-4-10, the defendant was entitled to amend the defendant's petition once the defendant had a valid bond. Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

Cited in Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975); Yield, Inc. v. City of Atlanta, 144 Ga. App. 637, 242 S.E.2d 478 (1978); Willis v. Jackson, 163 Ga. App. 26, 293 S.E.2d 498 (1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, §§ 83 et seq., 107 et seq.

C.J.S.

- 14 C.J.S., Certiorari, §§ 48, 68.

5-4-11. Conduct of hearing generally; trial by jury.

  1. Certiorari cases shall be heard by the court without a jury, in chambers or in open court, upon reasonable notice to the parties, at any time that the matters may be ready for hearing.
  2. Where a traverse to the answer has been filed and jury trial demanded, the matter may be tried at any time a jury is available therefor.

(Orig. Code 1863, § 3972; Code 1868, § 3992; Code 1873, § 4064; Code 1882, § 4064; Civil Code 1895, § 4649; Civil Code 1910, § 5198; Code 1933, § 19-401; Ga. L. 1961, p. 190, § 7.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 90 et seq.

C.J.S.

- 14 C.J.S., Certiorari, § 86 et seq.

5-4-12. Grounds of error considered generally; scope of review; technical distinctions abolished.

  1. No ground of error shall be considered which is not distinctly set forth in the petition.
  2. The scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.
  3. All technical distinctions as to what questions will be considered, such as questions concerning judgments absolutely void or assignments of error drawing in question the legal constitution or jurisdiction of the tribunal below, are abolished.

(Orig. Code 1863, § 3973; Code 1868, § 3993; Code 1873, § 4065; Code 1882, § 4065; Civil Code 1895, § 4650; Civil Code 1910, § 5199; Code 1933, § 19-402; Ga. L. 1961, p. 190, § 8.)

JUDICIAL DECISIONS

Section applies where certiorari petition fails to set out all errors of trial court. Brown v. Alexander, 112 Ga. 247, 37 S.E. 368 (1900); Perry v. Brunswick & W. Ry., 119 Ga. 819, 47 S.E. 172 (1904).

Issues neither raised at trial nor in certiorari petition.

- Question of freight charges not raised in justice's court on trial cannot properly be raised in superior court or Court of Appeals. Fine & Bro. v. Southern Express Co., 10 Ga. App. 161, 73 S.E. 35 (1911).

Writ of certiorari lies only for correction of errors committed in trial court, and no question, unless first raised there, can be considered by superior court or by this court. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929).

When it does not appear from record that certain issues were raised in the trial court, the issues cannot be raised by certiorari in the superior court. Bell v. City of Valdosta, 47 Ga. App. 808, 171 S.E. 572 (1933).

Issues neither raised at trial nor in certiorari petition cannot be reviewed by Court of Appeals. Bell v. City of Valdosta, 47 Ga. App. 808, 171 S.E. 572 (1933).

When issue not raised in petition for certiorari nor considered by the trial court, the appellate court is without authority to review the petition. Hodnett v. City of Atlanta, 145 Ga. App. 285, 243 S.E.2d 605 (1978).

Admission of illegal evidence at trial without objection is not ground for certiorari when both parties were represented by counsel. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929).

Supreme Court cannot hold dismissal of certiorari improper when petition sets forth no errors. Richards v. Little, 88 Ga. 176, 14 S.E. 207 (1891).

Petition must specify ruling complained of to avoid dismissal.

- Petition which fails to point out as erroneous any specific ruling of judge who tried case, and which does not complain specifically of any ruling that was made by the judge during the trial, is properly dismissed. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929).

Petition must allege error specifically and distinctly so that reviewing court may understand grounds relied on. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

Petition must state what objection was made at trial.

- Alleged error in admitting evidence cannot be considered by superior court when petition for certiorari does not state what, if any, objection was made when evidence was offered. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929).

Petition for certiorari from conviction for violation of municipal ordinance should contain provisions of ordinance.

- Because a city's petition for certiorari plainly and distinctly asserted the errors complained of, the superior court did not err in denying the city's motion to dismiss; moreover, the record reflected that the bar managers cited for violation of Atlanta, Ga., Code of Ordinances § 10-46 (1995) preserved the issue as to the constitutionality of the ordinance and the ordinance's enforcement. City of Atlanta v. Jones, 283 Ga. App. 125, 640 S.E.2d 698 (2006).

Assignment of error that verdict was contrary to or unsupported by evidence is sufficient. Gresham v. Lee, 28 Ga. App. 576, 112 S.E. 524 (1922).

Assignment of error that verdict is contrary to law, truth, and justice is insufficient and dismissal is proper. Taft Co. v. Smith, 112 Ga. 196, 37 S.E. 424 (1900); Callaway v. City of Atlanta, 6 Ga. App. 354, 64 S.E. 1105 (1909); Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936).

When only error assigned is that dismissal below was erroneous, dismissal of petition will result. Hicks v. Smith, 28 Ga. App. 594, 112 S.E. 295 (1922).

Ground of motion for new trial that verdict is excessive is too general. Bart v. Scheider, 39 Ga. App. 467, 147 S.E. 430 (1929).

Overruling certiorari upon legal ground apparent in record.

- Section does not preclude judge from overruling certiorari and affirming judgment of trial court upon legal ground apparent in record, without reference to reason given for judgment. Fowler v. King, 29 Ga. App. 500, 116 S.E. 54 (1923).

Any evidence test.

- Appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. City of Atlanta Gov't v. Smith, 228 Ga. App. 864, 493 S.E.2d 51 (1997).

"Substantial evidence" test prescribed.

- Bolton v. City of Newman, 22 Ga. App. 15, 95 S.E. 472 (1918), which established the "slight evidence" test as a correct test to be used in determining whether the superior court erred in "overruling" a petition for certiorari, is no longer the proper standard to be applied. Subsection (b) of O.C.G.A. § 5-4-12 prescribes the use of the "substantial evidence" test. Graham v. Wilkes, 188 Ga. App. 402, 373 S.E.2d 90 (1988).

Substantial evidence justified termination of county employee.

- Evidence supported the County Personnel Board's decision that the county employee sabotaged county property, divulged confidential patient information, and acted in a way that impaired and reflected adversely on the county and, therefore, the superior court erred in reversing the Board's decision because the evidence showed that although the employee had been trained on obligations under HIPPA, when the employee found patient records in an unsecured, open dumpster the employee left the records there, taking no steps to secure the records. Fulton County v. Berry, Ga. App. , 841 S.E.2d 744 (2020).

Court not to weigh evidence before it.

- Trial court erred in ordering the county zoning board to issue a conditional use permit for a railroad spur transfer station to unload ethanol into a pipeline because the record supported the commission's decision to deny a permit based on noise, traffic, possible contamination, flammability, and the hazardous nature of ethanol that were specific to the tract and the trial court was not to weigh evidence before it, only determine if the record evidence supported the decision to deny. Macon-Bibb County Planning & Zoning Comm'n v. Epic Midstream, LLC, 349 Ga. App. 568, 826 S.E.2d 403 (2019).

Upon certiorari, judge of superior court has right to pass upon credibility of witnesses. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913).

Upon certiorari, judge of superior court may exercise original discretion as to correctness of verdict, which is not possessed by other courts of review. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913); Macon v. United States Fid. & Guar. Co., 41 Ga. App. 774, 154 S.E. 702 (1930).

Nature and extent of superior court judge's discretion in reviewing evidence upon certiorari.

- Brown v. Mosteller, 181 Ga. 457, 182 S.E. 519 (1935).

Administrative ruling.

- Standard of appellate court review of superior court decisions, that of "some" or "any evidence," is not intended to supervene or diminish the requirement that an administrative ruling be supported by substantial evidence. Wherever evidence before the administrative board is equivocal, the superior court errs in denying certiorari to determine whether the administrative board's ruling is supported by substantial evidence. Guntharp v. Cobb County, 168 Ga. App. 33, 307 S.E.2d 925 (1983).

Hearing before county board of commissioners issuing "order" finding liability for business taxes and directing that a fieri facias be issued for the amount of taxes due does not constitute a decision of an inferior judicatory from which the taxpayer should petition for certiorari in the superior court when the hearing is not transcribed or recorded, but is memorialized only by the minutes of the meeting, the hearing is not conducted in accordance with judicial procedure, and the ordinance in question does not give an appellant as a matter of right a trial in accordance with judicial procedure. Accordingly, declaratory judgment relief is proper. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983).

Hearing officer's decision not reversible based on outcome of subsequent criminal trial.

- Hearing officer affirmed a county's dismissal of a police officer for conduct unbecoming an officer based on an act of domestic violence; the officer sought a writ of certiorari under O.C.G.A. § 5-4-12(b). Reversal of the hearing officer's decision based on the officer's subsequently being found not guilty of all criminal charges stemming from the incident was improper as this occurred after the hearing officer's decision was issued, was not a part of the administrative record, and was irrelevant to the determination of whether the county properly terminated the officer's employment. DeKalb County v. Bull, 295 Ga. App. 551, 672 S.E.2d 500 (2009).

Court without authority to enforce 2010 order.

- Trial court erred in upholding the decision of a recorder's court finding the defendant in contempt of the 2010 Order from an unrelated case because the uncontroverted evidence showed that the 2010 case against the defendant had been dismissed; thus, the recorder's court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 Order, which was no longer in effect. Lewis v. City of Savannah, 336 Ga. App. 126, 784 S.E.2d 1 (2016).

Cited in Long v. England, 28 Ga. App. 818, 113 S.E. 50 (1922); Logan v. State, 56 Ga. App. 460, 192 S.E. 839 (1937); Britt v. State, 65 Ga. App. 812, 16 S.E.2d 523 (1941); Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); City of Atlanta v. Whitten, 144 Ga. App. 224, 240 S.E.2d 771 (1977); International Funeral Servs., Inc. v. DeKalb County, 244 Ga. 707, 261 S.E.2d 625 (1979); Sullivan v. Brownlee, 174 Ga. App. 813, 331 S.E.2d 622 (1985); Lee v. Hutson, 810 F.2d 1030 (11th Cir. 1987); Foreman v. City of College Park, 199 Ga. App. 827, 406 S.E.2d 261 (1991); Bearden v. City of Austell, 212 Ga. App. 398, 441 S.E.2d 782 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 93 et seq.

C.J.S.

- 14 C.J.S., Certiorari, § 92 et seq.

ALR.

- Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 A.L.R.2d 675.

5-4-13. Grant of writ for failure to prove venue or time of criminal offense.

No judge of a superior court shall grant a writ of certiorari or sustain the writ in a criminal or quasi-criminal case on the ground that the venue was not proved in the trial court or that the time of the commission of the offense was not proved, unless there is a distinct allegation in the petition for the writ of failure to prove the venue or time and an allegation of error as to such matters.

(Ga. L. 1911, p. 149, § 1; Code 1933, § 19-404.)

JUDICIAL DECISIONS

Petition for certiorari containing allegation that there was failure to prove venue suffices, even though it does not appear that the distinct question of venue was raised in the recorder's court. Garrett v. City of Atlanta, 152 Ga. 675, 110 S.E. 886 (1922).

Lack of proof of venue cannot be raised for first time in Court of Appeals.

- When there is no distinct allegation of failure to prove venue in the trial court in a petition of certiorari to the superior court and no distinct brief of plaintiff in error, this section prohibits raising of question of lack of proof of venue for first time in Court of Appeals. Sturman v. State, 59 Ga. App. 498, 1 S.E.2d 467 (1939).

Where lack of proof of venue is not specifically raised by any general or special grounds of motion for new trial, that question may not be presented to the Court of Appeals. Charles v. State, 64 Ga. App. 265, 13 S.E.2d 44 (1941).

Cited in Parrish v. State, 10 Ga. App. 836, 74 S.E. 445 (1912); Rice v. City of Eatonton, 15 Ga. App. 505, 83 S.E. 868 (1914).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 493.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

5-4-14. Dismissal or return of writ to lower court with instructions; entry by superior court of final decision where no questions of fact involved.

  1. Upon the hearing of a writ of certiorari, the superior court may order the same to be dismissed or may return the same to the court from which it came with instructions.
  2. In all cases when the error complained of is an error in law which must finally govern the case, and the court is satisfied that there is no question of fact involved which makes it necessary to send the case back for a new hearing before the tribunal below, it shall be the duty of the judge of the superior court to make a final decision in the case without sending it back to the tribunal below.

(Laws 1850, Cobb's 1851 Digest, p. 529; Code 1863, § 3975; Code 1868, § 3995; Code 1873, § 4067; Code 1882, § 4067; Civil Code 1895, § 4652; Civil Code 1910, § 5201; Code 1933, § 19-501.)

JUDICIAL DECISIONS

General Consideration

Section applies to certiorari from verdict of jury in justice court. Boroughs v. White & Stone, 69 Ga. 841 (1883).

Section inapplicable to disposition of possessory warrant case. Bush & Bro. v. Rawlins, 80 Ga. 583, 5 S.E. 761 (1888).

Petition containing no assignment of error is void.

- Petition for certiorari which does not plainly and distinctly set forth assignment of error on any ruling, decision, or judgment of inferior judicatory is void. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260 (1934).

Valid, dismissed certiorari may be renewed under

§ 9-2-61, but void certiorari is not renewable. - When valid certiorari had been dismissed, it could be renewed within six months under provisions of former Code 1933, § 3-808 (see O.C.G.A. § 9-2-61), but a petition for certiorari void for any reason could not be renewed. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260 (1934).

Judgment of superior court sustaining first certiorari is equivalent to first grant of new trial, and will not be interfered with unless verdict or judgment set aside by the court was, as a matter of law, demanded. Macon v. United States Fid. & Guar. Co., 41 Ga. App. 774, 154 S.E. 702 (1930).

Court may, upon final decision of case, direct magistrate to refund costs.

- Such magistrate, though insolvent, may be compelled to perform the magistrate's official duty. Gault v. Wallis, 53 Ga. 675 (1875).

Cited in Dorsey v. Black, 55 Ga. 315 (1875); Crusselle v. Chastain, 76 Ga. 840 (1886); Rogers v. Bennett, 78 Ga. 707, 3 S.E. 660 (1887); Mathis v. Bagwell, 101 Ga. 167, 28 S.E. 638 (1897); Hubert v. Southern Live-Stock Ins. Co., 103 Ga. 294, 29 S.E. 938 (1898); Wilensky v. Brady, 121 Ga. 90, 48 S.E. 687 (1904); Strickland v. American Nat'l Bank, 34 Ga. App. 549, 130 S.E. 598 (1925); Shehane v. Wimbish, 34 Ga. App. 608, 131 S.E. 104 (1925); Flood v. Empire Inv. Co., 35 Ga. App. 266, 133 S.E. 60 (1926); Whitworth v. Carter, 39 Ga. App. 625, 147 S.E. 904 (1929); Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931); J.M. High Co. v. Arrington, 45 Ga. App. 392, 165 S.E. 151 (1932); Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935); Murphy v. Drum & Bugle Corps., 55 Ga. App. 293, 190 S.E. 67 (1937); Lewallen v. Dalton Auto & Mach. Co., 57 Ga. App. 328, 195 S.E. 305 (1938); Williams v. Smith, 66 Ga. App. 120, 17 S.E.2d 206 (1941); Sneed v. State, 72 Ga. App. 102, 33 S.E.2d 29 (1945); Roberson v. City of Rome, 72 Ga. App. 55, 33 S.E.2d 33 (1945); Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950); Brinkman v. City of Gainesville, 83 Ga. App. 508, 64 S.E.2d 344 (1951); Law v. State, 92 Ga. App. 604, 89 S.E.2d 550 (1955); Rogers v. Mayor of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668 (1964); Mayor of Atlanta v. Williams, 124 Ga. App. 802, 186 S.E.2d 480 (1971); Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974); City of Atlanta v. Whitten, 144 Ga. App. 224, 240 S.E.2d 771 (1977); Hoyt v. Transfreight Lines, 160 Ga. App. 154, 286 S.E.2d 491 (1981); Lee v. Hutson, 810 F.2d 1030 (11th Cir. 1987); Johnson v. DeKalb County, 214 Ga. App. 756, 449 S.E.2d 311 (1994); City of Atlanta v. Houston, 221 Ga. App. 61, 471 S.E.2d 12 (1996).

Dismissal of Certiorari

"Dismiss" and "overrule" synonymous.

- It would seem that the word "dismiss" under this section is in fact used in the sense synonymous with "overrule." Ray v. Cruce, 21 Ga. App. 539, 94 S.E. 899 (1918).

When judge's order uses "denied" instead of "dismissed," correction will be directed. Atlantic C.L.R.R. v. Peters, 32 Ga. App. 791, 124 S.E. 815 (1924).

Failure of judge to file proper answer will be sufficient reason to dismiss a certiorari, when no timely motion is made to perfect the answer. City of Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980).

Dismissal for justice's failure to send up copies of proceedings.

- Failure of justice of peace to send up copies of proceedings in the justice's court when the copies are necessary to determination of cause is good ground for dismissal of certiorari, but certiorari will not be dismissed when the magistrate fails to send up copies of proceedings when errors complained of in petition, as verified by answer can be fully considered and determined without reference to such proceedings. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

Dismissal of certiorari affirmed when legally justified for reason other than that assigned.

- When order of judge of superior court dismissing petition for certiorari is proper and legally justified for reason other than that assigned by the judge, the judge's action will be affirmed. Anderson v. West Lumber Co., 51 Ga. App. 333, 179 S.E. 738 (1935).

Judgment overruling certiorari on merits will be affirmed when record indicates court lacked jurisdiction to entertain petition for certiorari. Gilbert v. Land Estates, Inc., 62 Ga. App. 845, 9 S.E.2d 914 (1940).

Certiorari renewed under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61) was properly dismissed when first certiorari was not dismissed on merits. Sheehan v. City Council, 8 Ga. App. 539, 69 S.E. 916 (1911).

Dismissal not proper, though evidence is doubtful whether writ was filed with petition. Spencer v. Gill, 23 Ga. 8 (1857).

No dismissal due to insufficiency of affidavit to support petition when answer supports petition. Taylor v. Gay, 20 Ga. 77 (1856).

Failure to prosecute writ.

- Dismissal is not proper for failure to prosecute writ when counsel for defendant removes papers. Hopkins, Allen & Co. v. Suddeth, 18 Ga. 518 (1855).

Remand

Case must be returned even though record shows that verdict lacks evidence to support the verdict. Alabama G.S.R.R. v. Austin, 112 Ga. 61, 37 S.E. 91 (1900); Patterson v. Central of Ga. Ry., 117 Ga. 827, 45 S.E. 250 (1903); Fain v. Pilcher & Booth, 31 Ga. App. 115, 120 S.E. 27 (1923).

Case may be returned even though record shows that verdict lacks evidence to support the verdict. This is so notwithstanding former certiorari in same case complaining of similar verdict was sustained. Alabama G.S.R.R. v. Austin, 112 Ga. 61, 37 S.E. 91 (1900); Patterson v. Central of Ga. Ry., 117 Ga. 827, 45 S.E. 250 (1903); Fain v. Pilcher & Booth, 31 Ga. App. 115, 120 S.E. 27 (1923).

In case when only error alleged is that verdict is contrary to law and evidence, it is erroneous to render final judgment in petitioner's favor, for the reason that in such case error complained of is not one of law which must finally govern the case. Tuten v. Towles, 36 Ga. App. 328, 136 S.E. 537 (1927).

When final determination of case tried in inferior court and carried by certiorari to superior court does not depend upon any controlling question of law, and there are issues of fact involved, superior court has no authority to render final judgment therein, although it may clearly appear from facts disclosed by record that verdict rendered in lower court was without evidence to support it. Smith v. J.J. Williamson & Sons, 43 Ga. App. 702, 159 S.E. 912 (1931).

Judge may give directions as to verdict on retrial in event evidence is same.

- In such case, the court may direct that if evidence is substantially the same on the next trial, a verdict for the defendant should be rendered. Baker v. Kendrick, 9 Ga. App. 382, 71 S.E. 498 (1911).

When certiorari is sustained on ground that venue was not established.

- When, upon conviction in criminal court of county, defendant applied for writ of certiorari to superior court of county on ground that state had failed to establish venue of case, and upon hearing, state admitted the state's failure to establish venue, it is proper for the superior court to sustain certiorari and remand the case to the trial court for another trial, and it is not proper for the superior court in such case to enter final judgment therein, as error complained of is not an error of law which must finally govern the case, and it cannot be known with certainty that evidence on another trial would be the same. Arnold v. State, 88 Ga. App. 710, 77 S.E.2d 550 (1953).

On new trial by superior court order, formal evidence of latter's judgment is unnecessary.

- After case has been tried in justice's court and on certiorari new trial has been ordered, a new trial may be lawfully had in the magistrate's court without producing therein any formal evidence of a judgment rendered in superior court. Odell v. Dozier, 104 Ga. 203, 30 S.E. 813 (1898).

Final Judgment on Certiorari

When court must render final judgment on certiorari.

- Provision of section, which requires judge of superior court to make a final decision in case which is before the judge on certiorari, is mandatory only when the nature of error complained of is such that the law forbids the result which was reached, no matter what testimony was, and regardless of what testimony may be adduced should there be another trial of the case. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913).

Wherever case can be determined as a matter of law, the court must make final disposition of the case. Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927).

When issues of fact are involved, case must be returned to lower court with instructions. Sapp v. Adams, 65 Ga. 600 (1880); Rogers v. Georgia R.R., 100 Ga. 699, 28 S.E. 457 (1897); Williams v. Bradfield, 116 Ga. 705, 43 S.E. 57 (1902); Jeffries v. Luke, 5 Ga. App. 157, 62 S.E. 719 (1908).

When court may render final judgment on certiorari.

- Court may render final judgment on certiorari, when no issue of fact is involved, and error assigned is a question of law which must finally govern the case. James v. Smith & Bro., 62 Ga. 345 (1879); Cone Export & Comm'n Co. v. McCalla, 113 Ga. 17, 38 S.E. 336 (1901); Hewett v. Robertson, 124 Ga. 920, 53 S.E. 456 (1906); Porterfield v. Thompson, 4 Ga. App. 524, 61 S.E. 1055 (1908); Walton v. Shakespear, 18 Ga. App. 140, 88 S.E. 906 (1916); Dixon v. Pierce, 22 Ga. App. 291, 95 S.E. 995 (1918).

Discretion of court will not be controlled unless manifestly abused. Ayers v. Taylor, 54 Ga. 264 (1875).

When no dispositive question of law is presented.

- Judge of superior court is not authorized to render final decision when there is no question of law before it which must finally govern case, and only issues of fact are involved. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

When issues of fact are involved, final judgment cannot be passed on certiorari. Desvergers v. Kruger, 60 Ga. 100 (1878); Almand v. Georgia R.R. & Banking Co., 102 Ga. 151, 29 S.E. 159 (1897); Pittman v. Alexander, 19 Ga. App. 475, 91 S.E. 910 (1917).

If there is question of fact, whether disputed or not, court cannot enter final judgment. Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945). But see Rome R.R. v. Ransom, 78 Ga. 705, 3 S.E. 626 (1887); Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927).

When issues of fact are involved, superior court has no authority to render final judgment, and even though former judgment is without evidence to support the judgement, the superior court must remand the case for a new trial. Putnam v. Sewell, 86 Ga. App. 298, 71 S.E.2d 566 (1952).

When only question involves sufficiency of evidence to support finding in justice's court, superior court judge errs in rendering final judgment. Gowder v. Smith, 62 Ga. App. 647, 9 S.E.2d 197 (1940).

Court may make final disposition of case involving law and facts when latter not disputed. Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927). But see Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945).

Section permits final disposition of case, even though facts are involved, if not conflicting. Rome R.R. v. Ransom, 78 Ga. 705, 3 S.E. 626 (1887). But see Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945).

Certiorari may be sustained at instance of defendant, although evidence is conflicting. Hancock v. Allen, 29 Ga. App. 611, 116 S.E. 321 (1923).

Use of legal question involved in motion to dismiss, overruled below, to render final judgment.

- Superior court judge may make use of question of law involved in demurrer (now motion to dismiss), which was wholly overruled by justice at trial, to dispose finally of case without sending the case back for a new hearing. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

It is immaterial upon what ground judge based decision if the judgment on certiorari is correct. Nightingale v. Mayor of Brunswick, 26 Ga. App. 43, 105 S.E. 382 (1920); Hines v. Porter, 26 Ga. App. 178, 106 S.E. 16 (1921).

Modification of Sentence or Correction of Verdict on Certiorari

Sentence which does not exceed maximum of statute cannot be modified by the superior court. Johnson v. City of Hawkinsville, 27 Ga. App. 801, 110 S.E. 23 (1921).

Superior court has no power, under writ of certiorari, to modify sentence passed by city court and not imposing punishment beyond maximum prescribed by law. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

When verdict exceeds amount claimed.

- Court may under this section, with assent of plaintiff, correct verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Seaboard Air-Line Ry. v. Christian, 115 Ga. 742, 42 S.E. 66 (1902).

When superior court properly overrules all grounds of petition for certiorari save one presenting point that verdict under review was contrary to law because for an amount larger than that sued for, that court may, with assent of the plaintiff, correct the verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

If trial jury erred in finding interest, error should be corrected on certiorari. Carnes v. Mattox, 71 Ga. 515 (1883).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, §§ 85 et seq., 103 et seq.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, §§ 92 et seq., 111 et seq.

ALR.

- Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 A.L.R.2d 675.

5-4-15. Requirement of new trial when writ not answered.

In all cases pending in the superior courts upon certiorari from any inferior judicatory or any person exercising judicial powers, if the judge or other officer before whom the case was tried dies before answering the writ of certiorari or answers that he cannot or does not remember or recollect what occurred at the trial of the case and he therefore cannot or does not make answer to the same, it shall be the duty of the judge who granted the writ of certiorari forthwith to order a new trial of the case in the court below.

(Ga. L. 1861, p. 63, § 1; Code 1868, § 3996; Code 1873, § 4068; Code 1882, § 4068; Civil Code 1895, § 4653; Ga. L. 1899, p. 38, § 1; Civil Code 1910, § 5202; Code 1933, § 19-502; Ga. L. 1933, p. 113, § 1.)

JUDICIAL DECISIONS

Section applicable only when application for certiorari is valid and contains no fatal defect which renders it subject to dismissal. Miller v. Miller, 96 Ga. App. 469, 100 S.E.2d 594 (1957).

When justice answered but was ordered to amplify answer and died before doing so, section is inapplicable. Atlantic Coast Line R.R. v. Peters, 32 Ga. App. 791, 124 S.E. 815 (1924).

When plaintiff failed to make appropriate, timely motion, former Code 1933, § 19-502 (see O.C.G.A. § 5-4-14) did not affect dismissal under ormer Code 1933, § 19-301 (see O.C.G.A. § 5-4-7). Mathis v. City of Nashville, 49 Ga. App. 309, 175 S.E. 383 (1934).

Cited in Crine v. Morton Salt Co., 178 Ga. 754, 174 S.E. 347 (1934); Orr v. State, 55 Ga. App. 150, 189 S.E. 540 (1937); DeBerry v. Spikes, 188 Ga. 222, 3 S.E.2d 719 (1939); Delinski v. Dunn, 206 Ga. 825, 59 S.E.2d 248 (1950); Delinski v. Dunn, 207 Ga. 723, 64 S.E.2d 44 (1951).

RESEARCH REFERENCES

C.J.S.

- 14 C.J.S., Certiorari, § 118 et seq.

5-4-16. Recovery of costs by plaintiff where certiorari sustained; recovery of costs by plaintiff where certiorari returned to lower court for new trial.

If after the hearing the certiorari is sustained and a final decision thereon is made by the superior court, the plaintiff may have judgment entered for the amount recovered by him in the court below, the costs paid to obtain the certiorari, and the costs in the superior court. If the certiorari is returned to the court below for a new hearing, the plaintiff shall have judgment entered for the costs in the superior court only, leaving the costs paid to obtain the certiorari to be awarded upon the final trial below.

(Orig. Code 1863, § 3977; Code 1868, § 3998; Code 1873, § 4070; Code 1882, § 4070; Civil Code 1895, § 4655; Civil Code 1910, § 5204; Code 1933, § 19-504.)

JUDICIAL DECISIONS

When certiorari is sustained, losing party is liable for costs in superior court. Walker v. Hillyer, 130 Ga. 466, 61 S.E. 8 (1908).

Costs paid by losing party cannot be recovered even though the losing party may finally succeed in lower court. Walker v. Hillyer, 130 Ga. 466, 61 S.E. 8 (1908).

Amount of costs taxed will aid in determining whether final judgment under former Civil Code 1910, § 5201 (see O.C.G.A. § 5-4-14) was rendered. Whiddon v. Atlantic Coast Line R.R., 21 Ga. App. 377, 94 S.E. 617 (1917).

Improperly taxed costs of certiorari may be written off on appeal.

- When case is returned and costs paid to obtain certiorari are improperly taxed, the costs may be written off on appeal. Tison v. Savannah, Fla. & W. Ry., 97 Ga. 366, 24 S.E. 456 (1895); Haire v. McCardle, 107 Ga. 775, 33 S.E. 683 (1899).

Sustaining certiorari and returning case for another hearing discharge security on bond.

- When certiorari is sustained and case sent back for another hearing, security thereon is discharged from further liability, and may become security on subsequent certiorari bond in same case. Western & Atl. R.R. v. Carder, 120 Ga. 460, 47 S.E. 930 (1904).

Cited in Williams v. Smith, 66 Ga. App. 120, 17 S.E.2d 206 (1941).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 849 et seq.

5-4-17. Recovery of costs by defendant generally.

If the certiorari is dismissed and a final decision is made in the case by the superior court, the defendant in certiorari may have judgment entered in the superior court against the plaintiff and his security for the sum recovered by him, together with the costs in the superior court; and if the case is sent back to the court below, and there is a judgment in the case in favor of the defendant in the court below the security on the certiorari bond shall then be included as in case of security on appeal.

(Orig. Code 1863, § 3978; Code 1868, § 3999; Code 1873, § 4071; Code 1882, § 4071; Civil Code 1895, § 4656; Civil Code 1910, § 5205; Code 1933, § 19-505.)

JUDICIAL DECISIONS

Attorney fees are not "costs in the superior court" within the contemplation of O.C.G.A. § 5-4-17. Bearden v. City of Austell, 212 Ga. App. 398, 441 S.E.2d 782 (1994).

Judgment for defendant for amount recovered below, with costs, implies dismissal.

- Judgment of superior court which, upon hearing of certiorari, is rendered in favor of defendant therein for amount recovered by the defendant in municipal court, with costs, implies dismissal of certiorari, and is not subject to exception that it was error to enter such judgment without either overruling or sustaining the certiorari. Phelps v. Belle Isle, 29 Ga. App. 571, 116 S.E. 217 (1923).

When certiorari dismissed for nonpayment of costs, judgment against plaintiff and surety cannot be dismissed. Ray v. Cruce, 21 Ga. App. 539, 94 S.E. 899 (1918).

When certiorari in bail trover action is dismissed and costs awarded.

- When certiorari in bail trover action is dismissed, and judgment for costs of proceedings are taxed against the plaintiff, action on usual condemnation bond will lie for value of property, if lost or destroyed. Jones v. Funston, 22 Ga. App. 410, 95 S.E. 1003 (1918), later appeal, 23 Ga. App. 706, 99 S.E. 237 (1919), later appeal, 25 Ga. App. 92, 102 S.E. 541 (1920).

Cited in Carnes v. Mattox, 71 Ga. 515 (1883); Odell v. Dozier, 104 Ga. 203, 30 S.E. 813 (1898); Thompson v. Dean, 15 Ga. App. 757, 84 S.E. 205 (1915); Bailey v. Ware & Harper, 19 Ga. App. 255, 91 S.E. 275 (1917); Crine v. Morton Salt Co., 49 Ga. App. 150, 174 S.E. 723 (1934); Armstrong v. Mayor of Savannah, 250 Ga. 121, 296 S.E.2d 690 (1982).

RESEARCH REFERENCES

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, § 53 et seq.

5-4-18. Recovery of damages for frivolous certiorari.

If it shall be made to appear that a certiorari was frivolous and was applied for without good cause or only for the purpose of delay, the presiding judge before whom the writ was heard, on motion of the opposite party, may order that damages totaling not more than 20 percent of the sum adjudged to be due be recovered by the defendant in certiorari against the plaintiff in certiorari and his security; and judgment may be entered and execution issued accordingly.

(Ga. L. 1857, p. 104, § 2; Code 1863, § 3976; Code 1868, § 3997; Code 1873, § 4069; Code 1882, § 4069; Civil Code 1895, § 4654; Civil Code 1910, § 5203; Code 1933, § 19-503.)

JUDICIAL DECISIONS

Cited in Miller Co. v. Anderson, 118 Ga. 432, 45 S.E. 365 (1903); Flood v. Empire Inv. Co., 35 Ga. App. 266, 133 S.E. 60 (1926).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 891, 892.

5-4-19. Operation of writ of certiorari as supersedeas in civil cases.

The writ of certiorari, when granted in civil cases, shall operate as a supersedeas of the judgment until the final hearing in the superior court.

(Laws 1850, Cobb's 1851 Digest, p. 529; Code 1863, § 3968; Code 1868, § 3988; Code 1873, § 4060; Code 1882, § 4060; Civil Code 1895, § 4645; Civil Code 1910, § 5191; Code 1933, § 19-213.)

JUDICIAL DECISIONS

This section is a codification of common law. Dixon v. Sable, 147 Ga. 623, 95 S.E. 240 (1918).

Mere intention to apply for writ does not operate as a supersedeas. Seamans v. King, 79 Ga. 611, 5 S.E. 53 (1887).

There is no supersedeas prior to sanction of petition in absence of special order. Seamans v. King, 79 Ga. 611, 5 S.E. 53 (1887).

Certiorari stops case at stage where the case is when certiorari is served on magistrate; certiorari does not move case backwards. Taylor v. Gay, 20 Ga. 77 (1856); Board of Comm'rs v. Wimberly, 55 Ga. 570 (1876); Johns v. McBride, 28 Ga. App. 686, 112 S.E. 831 (1922).

If on hearing in superior court writ is denied, supersedeas ends and inferior court may proceed. Loeb v. Mangum, 134 Ga. 335, 67 S.E. 882 (1910); Equitable Life Assurance Soc'y v. Culp, 159 Ga. 874, 127 S.E. 225 (1925).

In bailable criminal cases, supersedeas stays execution of sentence, but does not discharge prisoner from confinement. Dixon v. State, 121 Ga. 346, 49 S.E. 311 (1904).

Cited in Waller v. Hogan, 92 Ga. 528, 17 S.E. 919 (1893); Gurr v. Gurr, 95 Ga. 559, 22 S.E. 304 (1895); King v. Haley, 146 Ga. 85, 90 S.E. 715 (1916); Hargett v. City of Columbus, 36 Ga. App. 628, 137 S.E. 911 (1927); Owens v. Watkins, 189 Ga. 311, 5 S.E.2d 905 (1939); McCants v. Underwood, 70 Ga. App. 641, 29 S.E.2d 287 (1944); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389 (M.D. Ga. 1972).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, § 77.

C.J.S.

- 14 C.J.S., Certiorari, § 59 et seq.

5-4-20. Supersedeas of criminal conviction; bond; affidavit of indigence; effect of supersedeas.

  1. Any person who has been convicted of any criminal or quasi-criminal offense or violation of any ordinance, in any inferior judicatory by whatever name called, except constitutional city courts or state courts, exercising criminal or quasi-criminal jurisdiction, who desires a writ of certiorari to review and correct the judgment of conviction in the case shall be entitled to a supersedeas of the judgment if he files with the clerk of the court, or, if there is no clerk, with the judge thereof, or with the commissioners if it is a court presided over by commissioners with no clerk, a bond payable to the state, or, if the conviction is in a municipal court, payable to the municipality, in amount and with security acceptable to and to be approved by the clerk, judge, or majority of the commissioners, as the case may be, conditioned that the defendant will personally appear and abide the final judgment, order, or sentence upon him in the case. The bond, if payable to the state, may be forfeited in the same manner as any other criminal bond in any court having jurisdiction. If the bond is payable to the municipal corporation, it may be forfeited according to the procedure prescribed in the municipal ordinance or charter. Alternatively, an action may be brought on the bond in any court having jurisdiction. Upon the giving of bond the defendant shall be released from custody in like manner as defendants are released upon supersedeas bonds in criminal cases where a notice of appeal has been filed.
  2. If the defendant is unable because of his indigence to give bond and makes this fact appear by affidavit to be filed with the judge, clerk, or commissioners, as the case may be, the same shall operate as a supersedeas of the judgment; provided, however, that the defendant shall not be set at liberty unless he gives bond as prescribed in subsection (a) of this Code section.
  3. The supersedeas provided for in this Code section shall operate to suspend the judgment of conviction until the case is finally heard and determined by the superior court to which it is taken by certiorari or by the Court of Appeals upon appeal, provided that within the time prescribed by law the defendant shall apply for and procure the writs and remedies provided by law for reviewing the judgment complained of. The supersedeas shall be equally applicable whether the judge of the superior court to whom the petition for certiorari is presented sanctions it or refuses it, provided that within the time provided by law the defendant diligently files a notice of appeal.
  4. The object of this Code section is to provide a method by which a defendant may obtain a supersedeas so long as he is prosecuting or is entitled under the law to prosecute the proceeding brought or to be brought to review the conviction of which he is complaining, or any intermediate appellate judgment rendered thereon, in order that the defendant shall not be deprived of his right to apply to the courts by being compelled to serve his sentence or pay a fine before he has had the full opportunity allowed him by law of taking the necessary proceedings to correct and review his conviction.

(Ga. L. 1902, p. 105, § 1; Ga. L. 1909, p. 148, §§ 1-3; Civil Code 1910, §§ 5192, 5193, 5194; Code 1933, §§ 19-214, 19-215, 19-216; Ga. L. 1982, p. 3, § 5.)

Cross references.

- Bonds and recognizances generally, T. 17, C. 6.

JUDICIAL DECISIONS

General Consideration

Applies to certiorari from inferior judicatories exercising criminal or quasi-criminal jurisdiction.

- In all cases for writ of certiorari from inferior judicatory exercising criminal or quasi-criminal jurisdiction, filing of bond, or making of pauper's affidavit, is condition precedent to application. Sauceman v. State, 209 Ga. 60, 70 S.E.2d 754 (1952).

Condition to certiorari from municipal court judgment.

- Filing of bond or making of pauper affidavit, required under this section, relating to certiorari sued to review judgment of municipal court, is condition precedent to application for certiorari. Nilsen v. City of La Grange, 55 Ga. App. 676, 191 S.E. 175 (1937).

Condition precedent to review of conviction in recorder's court.

- Filing of bond required by subsection (a) or pauper's affidavit provided for under subsection (b) is condition precedent to application for certiorari to review judgment of conviction in recorder's court. Long v. City of Crawfordville, 55 Ga. App. 182, 189 S.E. 685 (1937); West v. City of College Park, 116 Ga. App. 355, 157 S.E.2d 491 (1967).

Condition precedent to review of conviction in city court.

- Filing of security bond or pauper's affidavit is condition precedent to application for certiorari to review judgment of conviction in city court. Ellett v. City of College Park, 135 Ga. App. 269, 217 S.E.2d 374 (1975).

Failure to give bond required by section authorizes refusal to sanction petition. Roberts v. Mayor of Colquitt, 17 Ga. App. 557, 87 S.E. 816 (1916).

Unless it appears that requirements as to giving bond have been fully complied with, petition for certiorari should not be sanctioned. Mantovani v. City of Atlanta, 43 Ga. App. 787, 160 S.E. 129 (1931).

Appearance-supersedeas bond in certiorari must be executed according to provisions of this section as condition precedent to sanctioning of the application. Soles v. City of Vidalia, 92 Ga. App. 839, 90 S.E.2d 249 (1955).

Failure to aver filing of bond or affidavit renders petition void.

- Failure to aver in petition for certiorari that bond has been filed or affidavit made, renders petition void. Nilsen v. City of La Grange, 55 Ga. App. 676, 191 S.E. 175 (1937).

Petition sanctioned in spite of noncompliance with bond requirements should be dismissed on hearing. Mantovani v. City of Atlanta, 43 Ga. App. 787, 160 S.E. 129 (1931).

If writ has been improperly sanctioned, dismissal will be necessary. Flynn v. City of E. Point, 18 Ga. App. 729, 90 S.E. 372 (1916).

Dismissal proper for failure to file bond or make affidavit.

- When neither bond nor the pauper affidavit in lieu thereof was filed in the mayor's court as provided by this section there was no error in dismissing certiorari. Archer v. City of Fayetteville, 14 Ga. App. 24, 80 S.E. 34 (1913).

Cited in Laws v. State, 15 Ga. App. 361, 83 S.E. 279 (1914); Hubert v. City of Thomasville, 18 Ga. App. 756, 90 S.E. 720 (1916); Ronemous v. State, 87 Ga. App. 588, 74 S.E.2d 676 (1953); Hodges v. Bruce, 209 Ga. 871, 76 S.E.2d 801 (1953); Beard v. City of Atlanta, 91 Ga. App. 584, 86 S.E.2d 672 (1955); Clegg v. City of Vidalia, 91 Ga. App. 852, 87 S.E.2d 362 (1955); Coleman v. Mayor of Savannah, 102 Ga. App. 664, 117 S.E.2d 186 (1960); City of Gainesville v. Butts, 127 Ga. App. 140, 193 S.E.2d 59 (1972); Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975); Mulling v. Wilson, 245 Ga. 773, 267 S.E.2d 212 (1980).

Applicability

Motion to vacate and set aside verdict and judgment in criminal case.

- Hodges v. Balkcom, 209 Ga. 856, 76 S.E.2d 798 (1953).

No authority exists to fine or imprison defendant.

- A case is not a criminal or quasi-criminal proceeding when issues before police committee of general council of city were in nature of a civil proceeding, and committee had no authority to fine or to deprive officer of the officer's liberty, but the only authority vested in the committee was to exonerate, to suspend, or to discharge. City of Atlanta v. Stallings, 72 Ga. App. 52, 33 S.E.2d 18 (1945).

Certiorari from proceeding in municipal court to determine whether nuisance exists.

- Proceeding in municipal court to determine question of whether nuisance exists was not criminal or quasi-criminal in nature since the court cannot fine or imprison the defendant in error, and the bond required for certiorari was that provided for in former Code 1933, §§ 19-206, 19-207, 19-208 (see O.C.G.A. § 5-4-5) for civil proceedings, and bond under former Code 1933, §§ 19-214, 19-215, 19-216 (see O.C.G.A. § 5-4-20) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598, 98 S.E.2d 216 (1957).

Review of revocation of probationary sentences is not review of judgment of conviction.

- Defendants, who were confined upon revocation of probationary sentences and who sought review by certiorari of order of revocation, were not entitled to be released on bond, since the defendants were not seeking to review a judgment of conviction within the provisions of former Code 1933, §§ 19-214, 19-215, 19-216, and 27-901 (see O.C.G.A. §§ 5-4-20 and17-6-1). Foster v. Jenkins, 210 Ga. 383, 80 S.E.2d 277 (1954).

Bond

1. In General

Bond shall be conditioned to abide final judgment of superior court as well as inferior court.

- Bond approved by clerk of lower court, if there be one, conditioned to abide final judgment of superior court, as well as inferior court, must be filed as a condition precedent to obtaining writ of certiorari. Moon v. City of Jefferson, 10 Ga. App. 572, 73 S.E. 854 (1912).

Should be conditioned that defendant appear and abide by judgment.

- Bond conditioned for appearance of defendant to abide final judgment of superior court is insufficient. It should be conditioned to appear "and" abide by final judgment, as the two conditions are not synonymous. Scott v. City of Camilla, 7 Ga. App. 689, 67 S.E. 846 (1910); Ruffin v. City of Millen, 18 Ga. App. 784, 90 S.E. 654 (1916).

Abrogation of bond.

- When one convicted of misdemeanor in county criminal court has appealed by certiorari and successive writs of error all the way up to the Supreme Court of the United States, and verdict and sentence have been affirmed, and remittitur from the Court of Appeals of Georgia affirming such verdict and sentence has been made the judgment of superior court, such verdict and sentence become final; and when the defendant is thereafter arrested, the supersedeas certiorari bond executed in that case is abrogated and becomes functus officio, and the defendant is not thereafter entitled to remain at liberty by virtue of such bond. Hodges v. Balkcom, 209 Ga. 856, 76 S.E.2d 798 (1953).

Application may be amended to show valid bond.

- Defendant convicted in municipal court of leaving the scene of an accident and driving without insurance failed to comply with the bond requirement in O.C.G.A. Ý 5-4-20(a) before the defendant filed the defendant's application for writ of certiorari; however, under O.C.G.A. Ý 5-4-10, the defendant was entitled to amend the defendant's petition once the defendant had a valid bond. Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).

2. Execution and Signatures

When agent for surety signs certiorari bond, agent's authority must expressly appear.

- When on certiorari from trial court, certiorari bond is signed by one as agent for surety named thereon, authority of such agent must expressly appear. Taylor v. City of Atlanta, 84 Ga. App. 739, 67 S.E.2d 143 (1951).

When attorney signs bond for surety without power of attorney attached.

- When defendant in certiorari made a motion to dismiss certiorari for reason that surety on certiorari bond had executed the bond by the defendant's attorney and that the bond was not a valid bond, because no power of attorney was attached thereto showing authority of the attorney to sign the bond for the surety, the court properly sustained the motion and dismissed certiorari. Mantovani v. City of Atlanta, 43 Ga. App. 787, 160 S.E. 129 (1931).

3. Validity of Bond

Bond payable to city recorder charged with responsibilities involving forfeiture of appearance bonds.

- When city recorder is person charged with responsibility of forfeiting appearance bonds when the bond's conditions have not been complied with, and the recorder necessarily does so for and on behalf of the city as such officer, petition showing that bond hereunder was made payable to city recorder or the recorder's successors in office affirmatively shows a valid contract between obligors and city for this purpose, and it was not subject to dismissal upon this ground. Soles v. City of Vidalia, 92 Ga. App. 839, 90 S.E.2d 249 (1955).

Bonds filed in municipal court, payable to Governor.

- Bonds filed by defendants in municipal trial court, naming therein as obligee the Governor of Georgia and the Governor's successor in office are not legal bonds as are contemplated under provisions of this section, and failure of petitioners to give proper bond rendered the petition for certiorari void. Coleman v. Mayor of Savannah, 102 Ga. App. 664, 117 S.E.2d 186 (1960).

Filing of bond is not affirmatively established by allegations to that effect in petition. Hubert v. City of Thomasville, 18 Ga. App. 756, 90 S.E. 720 (1916).

Certificate of clerk or trial judge approving bond is not conclusive of bond's validity.

- While certificate from clerk or presiding officer of trial court that bond has been accepted and approved should be accepted as prima facie true, it is not conclusive that proper bond has been given; and if bond itself is sent up with the record and shows on the bond's face that legal bond has not been given, certiorari should be dismissed. Mantovani v. City of Atlanta, 43 Ga. App. 787, 160 S.E. 129 (1931).

In petition for certiorari from recorder's court, approval of bond by city clerk is insufficient.

- When, in petition for certiorari to superior court to correct judgment of recorder's court convicting the petitioner of violation of a city ordinance, instead of being approved by clerk of recorder's court or by recorder in absence of clerk, the supersedeas-appearance bond attached to petition was approved by the city clerk, the superior court did not err in overruling the petition for certiorari, as conditions precedent to application for certiorari, established by this section in such cases as this, are mandatory. Griffin v. City of Albany, 88 Ga. App. 229, 76 S.E.2d 436 (1953).

OPINIONS OF THE ATTORNEY GENERAL

Signing one's own bond and depositing security in cash.

- Bond requirements do not specify posting of property bond, but only that bond should be "in amount and with security acceptable to and to be approved by the clerk"; apparently there would be no prohibition against a person signing the person's own bond and depositing required security in cash. 1963-65 Op. Att'y Gen. p. 32.

Whether a person signs the person's own bond and deposits the required security in cash addresses itself to sole discretion of clerk approving bond. 1963-65 Op. Att'y Gen. p. 32.

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, §§ 21 et seq., 74 et seq.

ALR.

- What costs or fees are contemplated by statute authorizing proceeding in forma pauperis, 98 A.L.R.2d 292.

CHAPTER 5 NEW TRIAL

Article 1 General Provisions.
Article 2 Grounds.
Article 3 Procedure.
Cross references.

- Ga. Const. 1983, Art. VI, Sec. I, Para. IV.

RESEARCH REFERENCES

ALR.

- Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 98 A.L.R. 941; 29 A.L.R.2d 1199.

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

Power of trial court or judge to revoke order granting new trial in criminal case, 145 A.L.R. 400.

ARTICLE 1 GENERAL PROVISIONS

5-5-1. Power of probate, superior, state, juvenile, State-wide Business, and City of Atlanta courts.

  1. The superior, state, and juvenile courts, the Georgia State-wide Business Court, and the City Court of Atlanta shall have power to correct errors and grant new trials in cases or collateral issues in any of the respective courts in such manner and under such rules as they may establish according to law and the usages and customs of courts.
  2. Probate courts shall have power to correct errors and grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15 under such rules and procedures as apply to the superior courts.

(Laws 1799, Cobb's 1851 Digest, p. 503; Code 1863, § 3636; Code 1868, § 3661; Code 1873, § 3712; Code 1882, § 3712; Civil Code 1895, § 5474; Civil Code 1910, § 6079; Code 1933, § 70-102; Ga. L. 1986, p. 982, § 4; Ga. L. 2000, p. 862, § 1; Ga. L. 2019, p. 845, § 2-1/HB 239.)

The 2019 amendment, effective May 7, 2019, inserted ", the Georgia State-wide Business Court," near the beginning of subsection (a).

Editor's notes.

- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

Law reviews.

- For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For annual survey article, "'Garbage In, Garbage Out': The Litigation Implosion Over the Unconstitutional Organization and Jurisdiction of the City Court of Atlanta," see 52 Mercer L. Rev. 49 (2000). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, § 1056 are included in the annotations for this Code section.

Section grants superior courts power to correct errors and grant new trials. Frank v. State, 142 Ga. 741, 83 S.E. 645, 1915D L.R.A. 817, writ of error denied, 235 U.S. 694, 35 S. Ct. 208, 59 L. Ed. 429 (1914) (decided under former Code 1933, § 70-102, at time when section referred only to superior courts; see O.C.G.A. § 5-5-1).

Superior court of the county in which defendant was convicted of murder had authority, on defendant's motion for new trial, to order an expert evaluation of the defendant, who was incarcerated beyond the boundaries of the county in which the court sat. Zant v. Brantley, 261 Ga. 817, 411 S.E.2d 869 (1992).

What constitutes a city court.

- Welborne v. State, 114 Ga. 793, 40 S.E. 857 (1902) (decided under former Penal Code 1895, § 1056).

Municipal courts may hear motions for new trial.

- In a dispossessory action, a municipal court erred in holding that the court lacked jurisdiction to hear a motion for new trial under O.C.G.A. § 5-5-1. The municipal's court enacting legislation, 1983 Ga. Laws 4453-4454, § 33, as well as Ga. Const. 1983, Art. VI, Sec. I, Para. IV, gave the court such jurisdiction. Nelson v. Powell, 293 Ga. App. 227, 666 S.E.2d 598 (2008).

New trials are granted by superior court as a court, not by a presiding judge in the judge's capacity as judge. Allen v. State, 102 Ga. 619, 29 S.E. 470 (1897) (decided under former Penal Code 1895, § 1056).

New trial may be granted after trial before jury and before appeal. Eufaula Home Ins. Co. v. Plant & Cubbedge, 37 Ga. 672 (1868).

Discretion of trial court.

- Trial court is vested with discretion in granting new trials. Martin & Sons v. Bank of Leesburg, 137 Ga. 285, 73 S.E. 387 (1911).

When trial judge refuses to order new trial on ground of inadequate damages in tort action, this court will interfere with that discretion only in case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Because the defendant did not rebut the presumption that counsel's conduct was within the broad range of professional conduct, because the trial court considered and rejected counsel's motion for a mistrial, and because an eyewitness could testify about the certainty of the eyewitness's identification, the defendant was not entitled to a new trial. Greenwood v. State, 309 Ga. App. 893, 714 S.E.2d 602 (2011).

Certiorari lies though court may grant new trial.

- Although city court may have power to grant new trials, it is an inferior court whose final judgments may be reviewed by superior court upon certiorari. Archie v. State, 99 Ga. 23, 25 S.E. 612 (1896).

First grant of new trial by judge of superior court is never disturbed by appellate court, unless it is made to appear that in doing so the judge manifestly abused the discretion resting in the judge. Law v. Hodges, 53 Ga. App. 319, 185 S.E. 584 (1936).

Mere difference of opinion as to amount of recovery.

- New trial should not be granted based on mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference, when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Bias, passion, prejudice, or mistake must appear to justify setting aside verdict.

- When amount of verdict, though less than appellate court would have approved, does not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, the appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Presumption that trial judge knew rule as to obligation to approve jury's verdict.

- In interpreting language of order overruling motion for new trial, appellate court must presume that trial judge knew rule as to obligation to approve jury's verdict devolving upon the judge, and that in overruling motion the judge did exercise this discretion, unless language of order indicates to the contrary and that court agreed to verdict against the court's own judgment and against dictates of the judge's own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E. 236 (1944).

Damages rules and new trial rules exist independently.

- Rules of law governing (1) right of jury to originally fix damages, (2) right of appellate court to grant new trial when verdict is alleged to be excessive or inadequate, and (3) right of trial judge to grant new trial when in the judge's discretion the judge thinks the verdict unfair, unjust, contrary to evidence, excessive, or too small, exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E. 236 (1944).

Approval of verdict necessary to finalize verdict when party moves for new trial on general grounds.

- Before verdict becomes final the verdict should, when losing party requires it by motion for new trial, receive approval of mind and conscience of trial judge. Until the judge's approval is given, the verdict does not become binding in a case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

New trial may be granted on condition that plaintiff refuses to agree to reduction in verdict. Bank of Oglethorpe v. Hicks, 15 Ga. App. 92, 82 S.E. 635 (1914); Carter v. Virginia-Carolina Chem. Co., 144 Ga. 488, 87 S.E. 415 (1915); Biggers v. Mathews, 144 Ga. 857, 88 S.E. 190 (1916).

Party may be eliminated by order of appellate court, so judgment is against other defendant. Lovell v. Frankum, 24 Ga. App. 261, 100 S.E. 575 (1919).

Motion for new trial cannot be used to withdraw guilty plea.

- One who has filed plea of guilty in criminal case cannot move for new trial; neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty. Bearden v. State, 13 Ga. App. 264, 79 S.E. 79 (1913) (decided under former Penal Code 1910, § 1083).

Effect of judge's condemnatory language during sentencing.

- Disqualification to render judgment on motion for new trial does not result from the judge's use of language condemnatory of the accused when imposing sentence. Harrison v. State, 20 Ga. App. 157, 92 S.E. 970 (1917) (decided under former Penal Code 1910, § 1083).

Restriction on superior court's jurisdiction on appeal from probate proceeding.

- When appellant filed a motion in probate court to set aside or amend the probate of a will due to newly discovered evidence of a later will, the probate court properly dismissed the petition for lack of jurisdiction when the appellant was not a party to the original probate; on appeal, the jurisdiction of the superior court was limited to that of the probate court. In re Lott, 171 Ga. App. 25, 318 S.E.2d 688 (1984).

Reconsideration of pretrial ruling on immunity.

- Appellate court erred by reversing a trial court order granting the defendant a new trial because the trial court had the inherent authority to reconsider the court's pretrial ruling on the defendant's motion for immunity from criminal prosecution under O.C.G.A. § 16-3-24.2 and to rule otherwise. Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013).

Cited in Vance v. Gamble, 95 Ga. 730, 22 S.E. 576 (1895); Cowart v. Strickland, 149 Ga. 397, 100 S.E. 447, 7 A.L.R. 1110 (1919); City of Macon v. Herrington, 198 Ga. 576, 32 S.E.2d 517 (1944); Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659, 119 S.E.2d 11 (1961); Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994); Williams v. State, 307 Ga. 689, 838 S.E.2d 314 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Probate courts do not have the authority to grant new trials. 1986 Op. Att'y Gen. No. U86-13.

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, § 7 et seq.

18B Am. Jur. Pleading and Practice Forms, New Trial, § 1.

C.J.S.

- 23 C.J.S., Criminal Law, § 1423 et seq. 66 C.J.S., New Trial, § 1 et seq.

ALR.

- Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 98 A.L.R. 941; 29 A.L.R.2d 1199.

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.

Grant of new trial on issue of liability alone, without retrial of issue of damages, 34 A.L.R.2d 988.

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

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.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 A.L.R.5th 1.

ARTICLE 2 GROUNDS

Cross references.

- Requirement that motions for new trial in civil cases be predicated upon intrinsic defect not appearing on face of record or pleadings, § 9-11-60.

Those errors in admission or exclusion of evidence which will not constitute grounds for granting new trial, § 9-11-61.

Law reviews.

- For articles discussing the preparation of an amended motion for new trial and facts concerning appellate practice in general, prior to the adoption of the Appellate Practice Act, see 21 Ga. B.J. 424 (1959).

JUDICIAL DECISIONS

Error and injury are prerequisites.

- Before new trial should be granted because of error committed on trial, not only error but injury must be shown. Mills v. State, 41 Ga. App. 834, 155 S.E. 104 (1930).

Legal error is a compound of both error and injury. In absence of either constituent element, the grant of new trial is not warranted. Norris v. Sikes, 102 Ga. App. 609, 117 S.E.2d 214 (1960).

Ground of motion for new trial must be complete in itself. Blakeney v. Bank of Hahira, 176 Ga. 190, 167 S.E. 114 (1932).

Ground of a motion for new trial should be complete within itself, and Supreme Court will not look to other portions of record for purpose of supplementing the record. Gibson v. State, 176 Ga. 384, 168 S.E. 47 (1933).

Each special ground of motion for new trial must be complete within itself; and when so incomplete as to require reference to brief of evidence, or to some other portion of record, in order to determine what was alleged error and whether such error was material, ground will not be considered by reviewing court. Bray v. C.I.T. Corp., 51 Ga. App. 196, 179 S.E. 925 (1935).

Ground of a motion for new trial should be complete within itself, and should not require resort to brief of evidence for a clear understanding of error it is claimed was committed. Johnson v. Phoenix Mut. Life Ins. Co., 180 Ga. 422, 179 S.E. 95 (1935).

Extraordinary motions for new trial are not favored. Smith v. State, 171 Ga. 402, 155 S.E. 676 (1930).

Grounds of motion for new trial not approved as true without qualification cannot be considered. Gay v. State, 173 Ga. 793, 161 S.E. 603 (1931).

When jury charge is based on unconstitutional statute.

- Constitutionality of statute cannot be raised for first time in motion for new trial, but when the charge is given to the jury based upon statute which is unconstitutional, and counsel could not know nor anticipate that substance of statute would be given in charge to jury, counsel were not bound to raise question of constitutionality of statute before charge was given, and could assign error upon charge in motion for new trial. Wadley S. Ry. v. Faglee, 173 Ga. 814, 161 S.E. 847 (1931).

Although a father's motion seeking relief from a child support order was styled as a J.N.O.V., and there had been no jury verdict, the trial court had plenary authority to consider it as a motion for new trial under O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21, or a motion to set aside the judgment, based on the substance of the motion. Wheeler v. Akins, 327 Ga. App. 830, 761 S.E.2d 383 (2014).

Judge cannot modify verdict after verdict's receipt and jury's disbursement.

- If judge is not satisfied that verdict is returned is proper, before receiving verdict the judge may require the jury to return to room and correct the jury's verdict, under proper instructions from court or, after verdict is received and recorded and jury dispersed, the judge may grant a new trial. But the judge is without power to change and modify verdict after the verdict is received and recorded, and jury has dispersed. Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978).

Considered first grant when granted to party not previously awarded new trial.

- Rule that first grant of new trial will not be disturbed, except when verdict is demanded by evidence, is applicable to case where two successive verdicts have been rendered, one for plaintiff and the other for defendant, and when in each instance a new trial was granted. Schiefer v. Durden, 56 Ga. App. 167, 192 S.E. 388 (1937).

Cited in Cook v. Attapulgus Clay Co., 52 Ga. App. 610, 184 S.E. 334 (1936); Morris v. State, 303 Ga. 192, 811 S.E.2d 321 (2018); Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019).

RESEARCH REFERENCES

ALR.

- Abuse of witness by counsel as ground for new trial or reversal, 4 A.L.R. 414.

Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 A.L.R. 779, 95 A.L.R. 1163.

Power of trial court to dismiss defendant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 A.L.R. 187.

Manifestation of emotion by party during civil trial as ground for mistrial, reversal, or new trial, 69 A.L.R.2d 954.

Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 A.L.R.3d 1236.

Verdict-urging instructions in civil case admonishing jurors to refrain from intransigence, or reflecting on integrity or intelligence of jurors, 41 A.L.R.3d 1154.

Recantation by prosecuting witness in sex crime as ground for new trial, 51 A.L.R.3d 907.

Propriety of, or prejudicial effect of omitting or giving, instruction to jury, in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 A.L.R.3d 866.

Judgment favorable to convicted criminal defendant in subsequent civil action arising out of same offense as ground for reversal of conviction, 96 A.L.R.3d 1174.

Unauthorized view of premises by juror or jury in criminal case as ground for reversal, new trial, or mistrial, 50 A.L.R.4th 995.

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.

5-5-20. Verdict contrary to evidence and justice.

In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.

(Laws 1799, Cobb's 1851 Digest, p. 503; Code 1863, § 3637; Code 1868, § 3662; Code 1873, § 3713; Code 1882, § 3713; Civil Code 1895, § 5477; Penal Code 1895, § 1057; Civil Code 1910, § 6082; Penal Code 1910, § 1084; Code 1933, § 70-202.)

Law reviews.

- For survey of cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978).

JUDICIAL DECISIONS

General Consideration

Section furnishes exact rule by which verdict is to be measured; by it a verdict is either right or wrong. Richmond & D.R.R. v. Allison, 89 Ga. 567, 16 S.E. 116 (1892) (see O.C.G.A. § 5-5-20).

Damages rules and new trial rules exist independently.

- Rules of law governing (1) right of jury to originally fix damages, (2) right of appellate court to grant new trial when verdict is alleged to be excessive or inadequate, and (3) right of trial judge to grant new trial when in the judge's discretion the judge thinks the verdict "unfair, unjust, contrary to evidence, excessive, or too small," exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Authority to grant new trial.

- No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97, 547 S.E.2d 734 (2001).

Duty of trial judge to exercise discretion.

- Motion for new trial on grounds set forth in O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21 addresses sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962); Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

In a murder case, the record indicated that, contrary to the defendant's contention, the trial court was aware of and exercised the court's discretion to weigh the evidence in the court's consideration of the defendant's motion for new trial on the general grounds under O.C.G.A. §§ 5-5-20 and5-5-21 because the trial court specifically responded that the court would not grant a new trial as the thirteenth juror. Allen v. State, 296 Ga. 738, 770 S.E.2d 625 (2015).

Denial of new trial is in trial judge's discretion.

- Denial of a new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge. Witt v. State, 157 Ga. App. 564, 278 S.E.2d 145 (1981).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial, as the defendant did not show that the defendant received ineffective assistance of counsel because the evidence was so overwhelming against the defendant that there was not a reasonable probability that the subpoena of the witness and the witness's testimony at trial would have produced a different result; in other words, the defendant did not show that the defendant was prejudiced by the alleged deficiency of defense counsel's failure to subpoena a witness. Cain v. State, 277 Ga. 309, 588 S.E.2d 707 (2003), overruled in part by Dickens v. State, 280 Ga. 320, 627 S.E.2d 587 (2006).

Evidence supported the defendant's malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant's phone, given that a witness saw the defendant meet the victim at the door of the defendant's house, call the victim a bitch, and yank the victim's arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed it was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532, 796 S.E.2d 671 (2017).

Motion for new trial addresses only errors of law and fact contributing to rendition of verdict; it does not pertain to motion to vacate judgment. Insurance Co. of N. Am. v. Eunice, 111 Ga. App. 135, 140 S.E.2d 918 (1965).

Motion for new trial must be made before trial court.

- Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448, 738 S.E.2d 277 (2012).

Standard for considering motion for new trial.

- Trial court failed to apply the proper standard of review in considering a motion for new trial under O.C.G.A. § 5-5-20. A trial court could not grant judgment notwithstanding the verdict on an issue if "any evidence" existed to support that issue; by contrast, under § 5-5-20, a trial court could grant a motion for new trial if the verdict was contrary to the evidence. Moore v. Stewart, 315 Ga. App. 388, 727 S.E.2d 159 (2012).

Trial court applied incorrect standard.

- When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court's discretion and weigh the evidence. The trial court did not exercise the court's discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and5-5-21. Walker v. State, 292 Ga. 262, 737 S.E.2d 311 (2013).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant's motion for new trial, requiring remand for the trial court to apply the proper standard to the general grounds and to exercise the court's discretion to sit as a thirteenth juror pursuant to O.C.G.A. §§ 5-5-20 and5-5-21. White v. State, 293 Ga. 523, 753 S.E.2d 115 (2013).

Although the evidence was sufficient to convict the defendant as a party of sexual exploitation of children, aggravated sodomy, child molestation, and first degree cruelty to children, the judgment was vacated because the successor judge erred in denying the defendant's motion for a new trial as there was no evidence that the successor judge reviewed the evidence under the appropriate discretionary standard in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205, 767 S.E.2d 798 (2014).

General ground that verdict is contrary to evidence means verdict lacks evidence to support the verdict. Hardwick v. Georgia Power Co., 100 Ga. App. 38, 110 S.E.2d 24 (1959).

Approval of verdict necessary to finalize verdict.

- Before verdict becomes final the verdict should, when the losing party requires it by motion for new trial, receive approval of mind and conscience of trial judge. Until the judge's approval is given, the verdict does not become binding in case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Grounds for new trial known but omitted at time of motion cannot be raised in subsequent petition.

- When, in former suit between same parties and relating to same subject matter, verdict was rendered against party, whose motion for new trial was afterwards voluntarily dismissed, a petition subsequently brought by such party to review and set aside verdict is properly dismissed on general demurrer (now motion to dismiss), when it appears that grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate those grounds in motion for new trial made in former case. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946).

Cited in Holland v. Williams, 3 Ga. App. 636, 60 S.E. 331 (1908); Western & Atl. R.R. v. Hughes, 278 U.S. 496, 49 S. Ct. 231, 73 L. Ed. 473 (1929); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Davis v. State, 202 Ga. 13, 41 S.E.2d 414 (1947); Harper v. Hall, 76 Ga. App. 441, 46 S.E.2d 201 (1948); Devereaux v. State, 76 Ga. App. 498, 46 S.E.2d 528 (1948); Doyle v. Dyer, 77 Ga. App. 266, 48 S.E.2d 488 (1948); Lasseter v. Griffin, 77 Ga. App. 429, 49 S.E.2d 142 (1948); City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420, 53 S.E.2d 921 (1949); Nance v. State, 84 Ga. App. 777, 66 S.E.2d 273 (1951); Foster v. Jones, 208 Ga. 320, 66 S.E.2d 743 (1951); Hight v. Steely, 86 Ga. App. 137, 70 S.E.2d 886 (1952); Garland v. Green, 209 Ga. 424, 73 S.E.2d 187 (1952); Hamilton v. State, 89 Ga. App. 159, 78 S.E.2d 875 (1953); Whitfield v. Washburn Storage Co., 99 Ga. App. 708, 109 S.E.2d 865 (1959); Hamby v. Hamby, 99 Ga. App. 808, 110 S.E.2d 133 (1959); Cohen v. Gotlieb, 108 Ga. App. 122, 132 S.E.2d 93 (1963); Rackard v. Merritt, 114 Ga. App. 743, 152 S.E.2d 701 (1966); Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga. App. 662, 197 S.E.2d 749 (1973); Faulkner v. Western Elec. Co., 98 F.R.D. 282 (N.D. Ga. 1983); Southeast Grading, Inc. v. Grissom-Harrison Corp., 171 Ga. App. 298, 319 S.E.2d 121 (1984); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Powell v. State, 185 Ga. App. 464, 364 S.E.2d 599 (1988); Stinson v. State, 185 Ga. App. 543, 364 S.E.2d 910 (1988); Towns v. State, 185 Ga. App. 545, 365 S.E.2d 137 (1988); In re C.I.W., 229 Ga. App. 481, 494 S.E.2d 291 (1997); High v. Parker, 234 Ga. App. 675, 507 S.E.2d 530 (1998); Washington v. State, 276 Ga. 655, 581 S.E.2d 518 (2003); Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013); Gordon v. State, 329 Ga. App. 2, 763 S.E.2d 357 (2014); State v. Jackson, 295 Ga. 825, 764 S.E.2d 395 (2014); Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015); Bowen v. State, 299 Ga. 875, 792 S.E.2d 691 (2016); Smith v. State, 350 Ga. App. 496, 829 S.E.2d 776 (2019); State v. Hamilton, Ga. , 839 S.E.2d 560 (2020).

Judgment Notwithstanding Verdict

New trial may be granted without demanding judgment n.o.v. for weight of evidence may be on one side, yet there is some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence in the verdict's favor, the verdict may still be against weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Denial of new trial on general grounds, unexcepted to, precludes judgment notwithstanding verdict on appeal.

- When trial judge denies motion for new trial on general grounds, the judge finds that the verdict is not against the weight of the evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support the verdict or that the evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Effect of motion for judgment notwithstanding verdict when some evidence supports verdict.

- When there is any evidence supporting the verdict, grounds of motion for judgment notwithstanding the verdict, that such verdict was contrary to evidence and contrary to principles of justice and equity, merely invoke discretion of trial court on question of whether new trial should be granted on weight of evidence. Crosby Aeromarine, Inc. v. Hyde, 115 Ga. App. 836, 156 S.E.2d 106 (1967).

Application

1. In General

In first grant of new trial, trial judge has broad discretion. Garrett v. Garrett, 128 Ga. App. 594, 197 S.E.2d 739 (1973).

Denial of new trial becomes law of case as to grounds contained in motion.

- Absent specific appeal from ruling on motion for new trial or enumerating it as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Grant of new trial under section does not create statutory double jeopardy bar.

- Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

Trial court's written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51. Jackson Nat'l Life Ins. Co. v. Snead, 231 Ga. App. 406, 499 S.E.2d 173 (1998).

Successful motion precludes later plea of former jeopardy.

- Motion for new trial if granted at trial level is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

If no evidence supports finding, new trial must be granted. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933).

Overruling general grounds of motion is proper where some evidence supports verdict.

- When trial judge has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not error. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962).

New trial properly denied.

- Trial court properly denied defendant's motion for a new trial, as the evidence presented, when coupled with the victim's clear and unfettered identification of the defendant from a photo array, which was not impermissibly suggestive, supported the defendant's convictions, and the defendant failed to show that trial counsel, who had over 30 years of criminal defense experience, was ineffective and that there was a reasonable likelihood that but for the alleged errors, the outcome would have been different. McIvory v. State, 268 Ga. App. 164, 601 S.E.2d 481 (2004).

Defendant's motion for a new trial was properly denied as defendant's claim that the defendant was denied the right of access to the courts by conduct of the prison authorities as such conduct occurred in a post-conviction setting and did not go to the fundamental fairness of the trial as required by O.C.G.A. § 5-5-20 et seq. Tarvin v. State, 277 Ga. 509, 591 S.E.2d 777 (2004).

Motion for a new trial by one member of the limited liability company (LLC) in an action against other members was properly denied, as resignation by another member from LLC did not constitute a breach of fiduciary duty under the LLC's operating agreement or Georgia law; the remaining member failed to show that the members who resigned from the LLC were prohibited from forming a competing business or soliciting customers of the LLC. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Servs., 272 Ga. App. 232, 612 S.E.2d 17 (2005).

In a suit on a guaranty, the trial court did not err in denying a guarantor's motion for a new trial on general grounds, as the jury's award fell within the range of damages established by the evidence, the guarantor consented to the bank's modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court's instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006).

Because the appellant failed to supply the appellate court with the entire trial transcript in the record on appeal, but only included the pretrial motions and the opening statements at trial, without a complete transcript the court of appeals had to presume that the evidence supported the jury's verdict; thus, a new trial was not warranted. Parekh v. Wimpy, 288 Ga. App. 125, 653 S.E.2d 352 (2007), cert. denied, No. S08C0520, 2008 Ga. LEXIS 319 (Ga. 2008).

Trial court properly denied a motion for new trial based on the claim by a dentist and a dental center that a former employee failed to present evidence on the employee's claim of intentional infliction of emotional distress that the dentist's actions in harassing the employee were extreme and outrageous or that the emotional distress suffered by the employee was severe; the evidence of the dentist's pervasive pattern of harassing behavior demonstrated the extreme and outrageous nature of the dentist's conduct, and the severity of the emotional distress suffered by the employee was evidenced by the fact that the employee became so fearful of the dentist that the employee obtained a gun and kept the gun under the employee's bed until the employee moved out of state. Ferman v. Bailey, 292 Ga. App. 288, 664 S.E.2d 285 (2008).

Trial court did not err in denying a defendant's motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 based on newly discovered evidence because the "new" evidence - that the defendant's girlfriend got "five hundred" from the defendant in connection with the incident - did not come to the defendant's knowledge since the prior trial, and the girlfriend's alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555, 669 S.E.2d 514 (2008).

Trial court did not err in denying a defendant's motion for a new trial or the defendant's motion for a directed verdict because the evidence was sufficient for the trial court to find the defendant guilty of burglary in violation of O.C.G.A. § 16-7-1(a) beyond a reasonable doubt where the back window of a home was broken and police found the defendant hiding in a closet under a pile of clothing. Williams v. State, 297 Ga. App. 723, 678 S.E.2d 95 (2009).

Although the condemnee claimed that the verdict was contrary to law and the evidence because the Department of Transportation's (DOT) expert failed to give any value to the condemnee's loss of access to approximately 3,800 feet of frontage, the condemnee's claim failed because the record reflected that the expert explained that any access to the DOT bypass along the approximately 3,811 feet of frontage taken along with the 13.022 acres would be limited by the bypass itself and that the condemnee never owned access rights to the bypass. Moreover, the expert explained further that the frontage had been considered in the valuation of the property. RNW Family P'ship, Ltd. v. DOT, 307 Ga. App. 108, 704 S.E.2d 211 (2010).

Motion for a new trial was properly denied because: (1) the evidence was sufficient to support the crimes for which the defendant was convicted; (2) the trial court did not abuse the court's discretion by denying the defendant's motion for a change of venue due to pretrial publicity because the excusal percentage of jurors for cause was not indicative of such prejudice as would have mandated a change in venue; (3) no showing of an improper communication from a bailiff to the jury was shown; (4) the trial court properly instructed the jury and did not err in denying the defendant's requested instructions; and (5) a cumulative error rule was inapplicable. Gear v. State, 288 Ga. 500, 705 S.E.2d 632 (2011), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Trial court did not err in denying the defendant's motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1); under the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), the jury was entitled to consider the victim's out-of-court statements as substantive evidence, and the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim's accusations. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011).

Trial court did not err in denying the defendant's motion for new trial because the evidence was sufficient to authorize the defendant's conviction for possessing more than one ounce of marijuana; the defendant was presumed to have exclusive possession and control of the marijuana that a police officer found in the car the defendant was driving. Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011).

Trial court did not err in denying the defendant's motion for a new trial because the evidence established the defendant's commission of child molestation, O.C.G.A. § 16-6-4(a), and aggravated child molestation, O.C.G.A. § 16-6-4(c), and supported the verdict; the victim's prior inconsistent statements concerning the defendant's acts of sodomy were allowed to serve as substantive evidence of the defendant's guilt. Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011).

Trial court did not err in denying the defendant's motion for new trial because the evidence was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of false imprisonment, O.C.G.A. § 16-5-41(a), burglary, O.C.G.A. § 16-7-1(a), and aggravated assault, O.C.G.A. § 16-5-21(a)(2); defense counsel thoroughly cross-examined the victim, the responding officers, and the investigator regarding the victim's demeanor after the attack, the victim's description of the attack and the attacker, and the inconsistencies between what the victim told each of them, and determinations of witness credibility and the weight to give the evidence presented was solely within the province of the jury. Pennington v. State, 313 Ga. App. 764, 723 S.E.2d 13 (2012).

Because, at the hearing on the defendant's motion for new trial, the defendant clarified that the defendant was solely arguing the points raised in the defendant's amended motion, and the defendant repeatedly stated that the defendant's claim was that the evidence was insufficient to support the defendant's convictions, the defendant could not now be heard to complain that the trial court failed to exercise the court's discretion under O.C.G.A. §§ 5-5-20 and5-5-21 in finding that the verdict was strongly against the weight of the evidence or contrary to evidence and the principles of justice and equity. Gray v. State, 298 Ga. 885, 785 S.E.2d 517 (2016), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

Trial court did not err in denying the defendant's motion for new trial on general grounds because the victim's testimony was sufficient to establish that the defendant was a party to armed robbery and aggravated assault. Carter v. State, 339 Ga. App. 140, 793 S.E.2d 459 (2016).

Sufficient evidence supported the defendant's conviction for armed robbery and other crimes based on the victim identifying the defendant as one of the two robbers and as the robber who had struck the victim with a gun and the defendant was apprehended a short distance from the attack in possession of the victim's backpack and a pistol within minutes of the attack. Cooper v. State, 342 Ga. App. 351, 801 S.E.2d 589 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. 2018), cert. denied, 138 S. Ct. 2039, 2018 U.S. LEXIS 3176, 201 L. Ed. 2d 288 (U.S. 2018).

Trial court exercised the court's discretion in denying the defendant's motion for new trial as the evidence authorized the trial court's findings of fact that the defendant committed the offenses of sexual battery and pandering. Kea v. State, 344 Ga. App. 251, 810 S.E.2d 152 (2018).

Defendant's claim that the trial court failed to exercise the court's discretion as the thirteenth juror in denying the defendant's motion for a new trial failed as the court never explicitly declined to consider the credibility of witnesses or make clear the court's belief the court had no discretion to grant a new trial despite disagreeing with the jury's verdict. Massey v. State, 346 Ga. App. 233, 816 S.E.2d 100 (2018), cert. denied, 2019 Ga. LEXIS 80 (Ga. 2019).

Following the defendant's murder trial, the trial court did not err in denying the defendant's motion for new trial based on the general grounds, O.C.G.A. ÝÝ 5-5-20 and5-5-21, because multiple witnesses saw the defendant shoot the victim in a mall parking lot, chased the victim down, and then shoot the victim again; the jury was not required to credit the defendant's testimony that the victim had a gun. A hearing on the motion was not required. Bundel v. State, Ga. , 840 S.E.2d 349 (2020).

Evidence was sufficient to prove that the defendant fatally shot the victim, and that the defendant did not act in self-defense, because the jury was entitled to give greater weight to the evidence that the defendant had a gun cocked and ready before the meeting with the victim, while the victim was unarmed; the defendant told the homeowner to make the scene look like a burglary and threatened the homeowner; the defendant disposed of the gun and clothes; and there was evidence that the defendant was engaged in a felony drug deal at the time of the shooting, which would preclude the defendant's self-defense claim; thus, the defendant was not entitled to a new trial based on general grounds. Bannister v. State, 306 Ga. 289, 830 S.E.2d 79 (2019).

Defendant's murder conviction was supported by evidence that the defendant was a party to the crime, O.C.G.A. § 16-2-20, although the defendant's friend was the actual shooter, because the defendant drove the vehicle with the other perpetrators and got out, armed, and confronted the victim before the defendant's friend shot the victim; the defendant then drove the car away with the others and then ran away with the shooter after crashing the car. The trial court did not err in denying the defendant's motion for new trial. Williams v. State, 307 Ga. 689, 838 S.E.2d 314 (2020).

When motion for new trial denied.

- It is correct for the trial court to deny a motion for new trial when it cannot be said that the verdict of the jury was contrary to the evidence and without evidence to support the verdict. Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267, 291 S.E.2d 6 (1982).

Specific reference to defendant's general grounds argument, coupled with the trial court's statements concerning the nature and quantum of the evidence, established that the trial court did, in fact, consider whether the verdict was contrary to or against the weight of the evidence under the proper legal standard, and the trial court did fulfill its role to sit as the thirteenth juror when it denied defendant's motion for a new trial. Sellers v. State, 325 Ga. App. 837, 755 S.E.2d 232 (2014).

Trial court was aware of the court's responsibility as the "thirteenth juror" and, despite the court's mention of the sufficiency of the evidence at trial, the court exercised the court's discretion accordingly when denying the defendant's motion for a new trial after citing personal observations of witnesses and evidence at trial. Perdue v. State, 298 Ga. 841, 785 S.E.2d 291 (2016).

Failure to apply proper standard in assessing weight of evidence.

- Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the motion for new trial and, thus, remand was necessary for the trial court to apply the proper standard to the general grounds and to exercise the court's discretion to sit as a "thirteenth juror". Whitmire v. State, 343 Ga. App. 282, 807 S.E.2d 46 (2017).

If any evidence supports finding of jury, and no error otherwise committed, verdict will stand. Bill Jones Motors, Inc. v. Mitchell, 100 Ga. App. 185, 110 S.E.2d 555 (1959).

In determining whether there is any evidence supporting verdict, conflicts are resolved to favor verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979).

It is not error to refuse new trial if verdict is supported by evidence. Hornbuckle v. State, 76 Ga. App. 111, 45 S.E.2d 98 (1947).

When second trial necessary anyway.

- New trial is inappropriate when same verdict and judgment will necessarily result on second trial. Georgia Power Co. v. City of Decatur, 181 Ga. 187, 182 S.E. 32 (1935), aff'd sub nom. Georgia Ry. & Elec. Co. v. City of Decatur, 297 U.S. 620, 56 S. Ct. 606, 80 L. Ed. 925 (1936).

When evidence authorizes verdict for either party.

- When transcript contains evidence which, if believed by the jury, was quite sufficient to authorize the verdict, it is of no moment that evidence would also have authorized the verdict in some amount for the plaintiff since the jury weighed the evidence and made the jury's choice which is the jury's duty and function. Daniels v. Hartley, 120 Ga. App. 294, 170 S.E.2d 315 (1969).

Verdict contrary to law and issues raised by pleadings.

- That verdict is contrary to law and contrary to issues made by pleadings is a question which may be raised by motion for new trial. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946).

Verdict contrary to evidence and principles of justice.

- Trial court, on the court's own motion, did not err in granting the defendant a new trial on general grounds because the trial court's written order unequivocally applied the correct standard of review in granting the new trial, explaining that the court was granting a new trial because the verdict was contrary to the evidence and principles of justice and equity. State v. Hamilton, 306 Ga. 678, 832 S.E.2d 836 (2019).

Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448, 42 S.E. 785 (1902).

Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909).

Verdict in amount within range covered by testimony will not be set aside as unsupported by evidence, though the verdict may not correspond with contentions of either party. Langston v. Langston, 42 Ga. App. 143, 155 S.E. 494 (1930).

Counsel's remark not grounds for mistrial.

- Denial of defendant's motion for a new trial based on the prosecutor's remark in closing that the defendant had gone into the robbery business was proper and the remark was not the basis for a mistrial under O.C.G.A. § 5-5-20 since there was sufficient evidence to convict defendant of robbery and the jury's verdict was not contrary to the evidence and principles of justice and equity. Phillips v. State, 259 Ga. App. 331, 577 S.E.2d 25 (2003).

No abuse in granting new trial.

- Because there was expert evidence that supported a finding of negligence and causation against physicians and their employers in a medical malpractice action by a patient, a verdict in the physicians' favor was not absolutely demanded, and the trial court did not abuse the court's discretion in granting the patient's motion for new trial, pursuant to O.C.G.A. §§ 5-5-20 and5-5-50, after the jury rendered a verdict in favor of the physicians. Bhansali v. Moncada, 275 Ga. App. 221, 620 S.E.2d 404 (2005).

After a jury entered a special verdict finding that the corporation had notice of an earlier deed securing property in the corporation's declaratory judgment action to determine the priority of the corporation's deed over the earlier deed, the corporation's motion for a new trial was properly granted on the ground that the recordation of the earlier deed was so defective as to provide no notice under O.C.G.A. § 44-14-39; the trial court did not abuse the court's discretion in granting a new trial, even though the court's grant of judgment notwithstanding the verdict was improper on the ground that evidence supported the jury's verdict, because the evidence, construed in the corporation's favor as required under O.C.G.A. § 5-5-20, did not absolutely demand a verdict that the corporation had actual notice of the earlier deed. Page v. McKnight Constr., 282 Ga. App. 571, 639 S.E.2d 381 (2006).

In a case in which the defendant was found guilty of felony murder and other crimes in connection with the shooting death of the defendant's ex-husband, the trial court properly exercised the court's discretion to grant the defendant a new trial on the general grounds because the court concluded that the jury's guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity; and the supreme court would not disturb the first grant of a new trial based on the general grounds unless the trial court abused the court's discretion in granting it and the law and the facts demanded the verdict rendered. State v. Hamilton, 299 Ga. 667, 791 S.E.2d 51 (2016).

Following the defendant's murder trial, the trial court did not err in granting the defendant's motion for a new trial on general grounds, sitting as the thirteenth juror, pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 because the trial court's written order, although provided by the defendant, did not reveal any improper basis for the grant of a new trial and showed that the trial court properly exercised the court's discretion. State v. Holmes, 306 Ga. 647, 832 S.E.2d 777 (2019).

Judgment sustaining double jeopardy plea in bar reversed.

- Trial court did not err in granting the defendant's motion for new trial on the general grounds because, in the defendant's first motion for new trial, the defendant did not waive or abandon the defendant's claims that the verdict was contrary to the evidence and justice, and against the weight of the evidence, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon the defendant's ineffective assistance claim; and by failing to raise the claims in the defendant's brief following the evidentiary hearing. State v. Byrd, 341 Ga. App. 421, 801 S.E.2d 99 (2017).

After a mother and daughter were charged with the murder of the daughter's boyfriend, the judgment sustaining the double jeopardy plea in bar on the basis of insufficient evidence in the first trial was reversed because there was evidence of a common criminal intent, including the women's presence, companionship, and conduct before and immediately after the fatal shooting. State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017).

2. Adequacy of Damages

Determination is within discretion of trial court.

- Determination of question as to whether verdict for damages is inadequate in legal sense, lies within the sound discretion of the trial court. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Mere difference of opinion as to amount of recovery.

- New trial should not be granted based on mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Bias, passion, prejudice, or mistake must appear to justify setting aside.

- When amount of verdict, though less than appellate court would have approved, did not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

When judge can conscientiously acquiesce in verdict, trial judge should approve verdict.

- If trial court can conscientiously acquiesce in amount of verdict, though it may not exactly accord with the court's best judgment or though some other finding might seem somewhat more satisfactory to the judge's mind, and if the judge's sense of justice is reasonably satisfied, the judge should, in absence of some material error of law affecting trial, approve the verdict, and the appellate court will uphold the judge in so doing, and will not say that the judge abused the judge's discretion. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Inadequacy of damages for pain and suffering.

- Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315 (1935); Brown v. Garcia, 154 Ga. App. 837, 270 S.E.2d 63 (1980).

Exorbitant damages.

- Trial court erred in denying a railroad's motion for a new trial when the jury verdict awarding an injured employee substantially more than the employee requested for pain and suffering was clearly intended to punish the railroad, which was impermissible under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., as: (1) the jury found that the employee was 50 percent negligent; (2) the employee's condition had improved, and the employee was attending school, evidencing an ability to adapt to the disability and to improve the employee's economic situation; and (3) the employee's counsel infected closing argument with a plea to the jury to punish the railroad or to reach a verdict that would affect the jury's conduct. Norfolk S. Ry. v. Blackmon, 262 Ga. App. 266, 585 S.E.2d 194 (2003).

Appeal from Denial of New Trial

Appellate court does not have same discretion as trial judge who approved verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909).

Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979).

Because the defendant failed to seek a new trial on the general grounds under O.C.G.A. §§ 5-5-20 and5-5-21, that the verdict was against the weight of the evidence and contrary to the principles of justice and equity, but rather sought a new trial on the grounds of arguments made at trial, the appellate court could not address these grounds. Slaton v. State, 296 Ga. 122, 765 S.E.2d 332 (2014).

Appellate courts have no discretion regarding new trials for verdict against weight of evidence. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Appellate court must presume the trial court exercised discretion.

- Although a trial court's order denying the defendant's motion for new trial did not state that the trial court exercised the court's discretion as a thirteenth juror, the appellate court presumed that the trial court knew the rule as to the necessity of exercising the court's discretion in granting or refusing new trials; the order denying a new trial was taken to mean that the judge had, in the exercise of the judge's discretion, approved the verdict. Butts v. State, 297 Ga. 766, 778 S.E.2d 205 (2015).

Appellate court had no basis for disturbing the trial court's exercise of discretion in denying the defendant's motion for a new trial because the order reflected that the trial court performed the court's duty using the proper legal standard. Lundy v. State, 341 Ga. App. 767, 801 S.E.2d 629 (2017).

Order showed trial court exercised discretion.

- Following the defendant's murder trial, the trial judge properly exercised the judge's discretion as the thirteenth juror under O.C.G.A. §§ 5-5-20 and5-5-21 in finding that "the state had presented ample evidence" and that "the evidence was not sufficiently close nor represented a failure of justice in general." Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).

Appellate court cannot exercise discretion.

- Motion for new trial based on O.C.G.A. § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on O.C.G.A. § 5-5-21, i.e., that the verdict is strongly against the evidence, is a decision that is solely in the discretion of the trial court. An appellate court considers only the sufficiency of the evidence before the jury. Henderson v. State, 304 Ga. 733, 822 S.E.2d 228 (2018).

Trial judge's discretion regarding adequacy of damages, will not be interfered with by appellate courts absent manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

When the trial judge refuses to order a new trial on ground of inadequate damages in tort action, this court will interfere with that discretion only in case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

First grant of new trial is not normally reviewable by appellate courts.

- First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Appellate courts are powerless to interfere with first grant of new trial unless verdict set aside was demanded. Garrett v. Garrett, 128 Ga. App. 594, 197 S.E.2d 739 (1973).

Ruling on motion for new trial under this section or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) does not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

When trial judge discharges duty to review evidence, Supreme Court cannot review factual issues.

- When trial judge has discharged the judge's duty to review evidence, the Supreme Court has no power under the Constitution to pass judgment on issues of fact made by evidence. Merritt v. State, 190 Ga. 81, 8 S.E.2d 386 (1940).

Presumption that trial judge knew rule as to obligation to approve jury's verdict.

- In interpreting language of order overruling motion for new trial, the appellate court must presume that the trial judge knew rule as to obligation to approve jury's verdict devolving upon the judge, and that in overruling motion the judge did exercise this discretion, unless language of order indicates to contrary and that court agreed to verdict against the judge's own judgment and against dictates of the judge's own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of the jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).

Contrary to the defendant's argument, the trial court reviewed the defendant's motion for new trial under the discretionary thirteenth juror standard based on the court's own independent review of the trial record and finding no discrepancy between the jury's conclusions regarding the weight of the evidence and the credibility of the witnesses and the court's own views of those matters; moreover, the transcript showed clearly that the court understood the court's obligations as the so-called thirteenth juror. Burney v. State, 299 Ga. 813, 792 S.E.2d 354 (2016).

When there is doubt, appellate courts must decide in favor of verdicts. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933).

Appellate court cannot set aside verdict on general grounds trial judge could have relied upon.

- In considering case in which verdict of jury has approval of trial judge, the appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Appeal from denial of new trial on general grounds raises question whether evidence supported verdict.

- When appeal is from judgment denying party's motion for new trial and motion is based solely on general grounds, only query for reviewing court is whether evidence supported verdict. Daniels v. Hartley, 120 Ga. App. 294, 170 S.E.2d 315 (1969).

Any of general grounds for new trial are addressed to the discretion of the trial judge and on appeal these general grounds pose the sole question, was there any evidence to support verdict. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Setting aside verdict on evidentiary grounds.

- Court of Appeals can set aside verdict on evidentiary grounds only when totally unsupported. Court of Appeals was established to correct errors of law, and can only set verdict aside, on evidentiary grounds, as being contrary to law, in that the verdict lacks any evidence by which the verdict could be supported. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Verdict of jury which has approval of trial judge will not be set aside by Court of Appeals if the verdict is supported by any evidence. Branch v. Anderson, 47 Ga. App. 858, 171 S.E. 771 (1933).

While appellate division of Municipal Court of Atlanta may, as any other court of review, grant a new trial when there is no evidence to support the verdict, since there was some evidence on which the verdict could be based, and such verdict had the approval of the trial judge, the appellate division of the Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass'n, 52 Ga. App. 374, 183 S.E. 350 (1936).

When verdict is supported by some evidence and the verdict has approval of the trial judge, the verdict will not be disturbed by the appellate court as to general grounds of motion for a new trial. Western & Atl. R.R. v. Fowler, 77 Ga. App. 206, 47 S.E.2d 874 (1948).

When verdict is supported by some evidence and is approved by the trial court, the Court of Appeals is without authority to interfere. McDowell v. State, 78 Ga. App. 116, 50 S.E.2d 633 (1948); Humphries v. State, 78 Ga. App. 139, 50 S.E.2d 799 (1948); Newsome v. State, 78 Ga. App. 332, 50 S.E.2d 828 (1948).

Although evidence might authorize different verdict, when there is enough to support verdict found, judgment of trial court refusing new trial on general grounds will not be disturbed. Wright v. State, 76 Ga. App. 483, 46 S.E.2d 516 (1948); Marcus v. State, 76 Ga. App. 581, 46 S.E.2d 770 (1948); Ramer v. State, 76 Ga. App. 678, 47 S.E.2d 174 (1948); Whitfield v. Wheeler, 76 Ga. App. 857, 47 S.E.2d 658 (1948), overruled on other grounds, Caskey v. Underwood, 89 Ga. App. 418, 79 S.E.2d 558 (1953).

In passing upon general grounds of motion for new trial, appellate court will not disturb trial court's refusal to grant new trial if there is any evidence to support the judgment. Hopkins v. Sicro, 107 Ga. App. 691, 131 S.E.2d 243 (1963).

Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant's motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780, 466 S.E.2d 667 (1996).

Because two witnesses heard the defendant threaten to use a gun moments prior to the shooting, and eyewitnesses saw the defendant shoot the victim, the evidence was sufficient to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim, and the trial court did not err when the court denied the defendant's motion for new trial. Batten v. State, 295 Ga. 442, 761 S.E.2d 70 (2014).

Denial of motion for new trial not to be interfered with absent abuse of discretion.

- Denial of ordinary motion for new trial, like denial of extraordinary motion, when based upon conflicting evidence, will not be corrected absent abuse of discretion. Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833 (1938).

Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because neither the trial court's order nor the court's statement during the hearing that it was "just going to stick by what the jury did," demonstrated that the court failed to exercise the discretion afforded to the court under O.C.G.A. § 5-5-21 and merely showed the court's manner of expressing that it was exercising the court's discretion against setting aside the jury's verdict. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).

Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199, 818 S.E.2d 268 (2018).

Trial court did not abuse the court's discretion by denying the defendant's motion for new trial on general grounds because several codefendants testified that the defendant was a coconspirator and a participant in the victim's robbery, there was evidence that the defendant placed the telephone call to summon the victim, that the defendant was the first to confront the victim, and that the robbery was the defendant's idea. Smith v. State, 350 Ga. App. 336, 829 S.E.2d 408 (2019).

Denial of defendant's motion for new trial was reversed as the defendant's right to be present at trial under Ga. Const. 1983, Art. I, Sec. I, Para. XII was violated when the trial court questioned a juror in chambers without defense counsel or the prosecutor present, dismissed the juror, and replaced the juror with an alternate; the defendant did not acquiesce in the illegal proceedings and repudiated counsel's silent waiver of the juror's rights at the juror's first opportunity, the hearing on a motion for a new trial, at which the defendant was represented by new counsel. Sammons v. State, 279 Ga. 386, 612 S.E.2d 785 (2005).

Although the defendant received effective assistance from trial counsel, because the defendant did not waive or abandon the defendant's claims under O.C.G.A. §§ 5-5-20 and5-5-21, the trial court erred in denying the defendant's motion for new trial. Hartley v. State, 299 Ga. App. 534, 683 S.E.2d 109 (2009).

Although the trial court exercised the court's discretion as the thirteenth juror to assess the credibility of at least one witness, the court failed to properly fulfill the court's affirmative statutory duty to independently weigh the trial evidence and identify any offending testimony. It was incumbent upon the trial court to then examine and weigh the remaining evidence and independently consider whether the jury's verdict was contrary to the evidence or was against the weight of the evidence. State v. Reid, 331 Ga. App. 275, 770 S.E.2d 665 (2015).

Trial court erred by denying the appellant's motion for a new trial because the motion hearing transcript clearly showed that the appellant requested the trial court to exercise the court's discretion to review the evidence as a thirteenth juror, but in the court's order denying the motion, the trial court stated that, "The testimony and the other evidence introduced at trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt," which was not the proper standard of review. Gomillion v. State, 296 Ga. 678, 769 S.E.2d 914 (2015).

Defendant was entitled to a new trial because the order denying the defendant's motion for a new trial made only the legal determination that the evidence was sufficient under Jackson v. Virginia, and did not show that the successor judge exercised discretion, weighed evidence, and acted as the thirteenth juror in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205, 767 S.E.2d 798 (2014).

Trial court erred by denying the defendant's motion for new trial as abandoned instead of ruling on the merits of the defendant's arguments that the verdict of the jury was contrary to evidence and the principles of justice and equity and was contrary to the weight of evidence because counsel's failure to file a brief on the hearsay issues constituted an abandonment of the opportunity to make further argument on those issues rather than the entire motion for new trial. Wilson v. State, 349 Ga. App. 386, 825 S.E.2d 843 (2019).

Denial of defendant's motion for new trial upheld.

- It was not an abuse of discretion to deny a new trial motion brought by a trustee who was found to have breached the trustee's fiduciary duty to trust beneficiaries by making distributions to a cotrustee under a trust's encroachment provision because the trustee breached the trustee's duty to protect the trust corpus as: (1) the trustee inconsistently required the cotrustee to provide supporting evidence for corpus distributions and let the cotrustee exceed an allotted budget; and (2) the beneficiaries were damaged by the resulting reduction in trust corpus. Reliance Trust Co. v. Candler, 315 Ga. App. 495, 726 S.E.2d 636 (2012).

Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and5-5-21, the language used by the trial court in the court's discretionary determinations that the evidence at trial was not "sufficiently close" to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court's discretion under the relevant statutory provisions. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013).

There was no merit to the defendant's claim that a new trial on kidnapping charges was warranted on general grounds because the trial court's statement that the evidence against the defendant was very substantial, the verdict was not against the weight of the evidence, the evidence supported the verdict, and the verdict was not contrary to the evidence showed that the trial court understood the court's discretion and declined to exercise discretion. Alexander v. State, 348 Ga. App. 859, 825 S.E.2d 405 (2019).

Incorrect standard applied.

- Trial court applied the wrong standard when reviewing the defendant's motion for a new trial based on general grounds, applying the sufficiency of the evidence standard rather than the standard embodied in O.C.G.A. §§ 5-5-20 and5-5-21. Atkins v. State, 342 Ga. App. 849, 805 S.E.2d 612 (2017).

Trial court's attention was clearly directed to the court's discretion under O.C.G.A. §§ 5-5-20 and5-5-21, and there was no indication that the court failed to exercise the court's discretion in denying the new trial motion. Wilson v. State, 302 Ga. 106, 805 S.E.2d 98 (2017).

Because the trial court failed to apply the proper standard when considering the defendant's motion for new trial as the court found that the testimony of the victim and the investigator was sufficient under the Jackson v. Virginia, 443 U.S. 307 (1979) standard, the judgment was vacated and the case was remanded for consideration of the motion for new trial under the proper legal standard. Cook v. State, 351 Ga. App. 845, 833 S.E.2d 544 (2019).

Trial court failed to exercise the court's discretion as the "thirteenth juror" because, rather than reweighing the evidence presented at trial, the court applied a sufficiency-of-evidence standard when the court considered the defendant's motion for new trial on general grounds. Holmes v. State, 306 Ga. 524, 832 S.E.2d 392 (2019).

When the evidence supports judgment rendered without jury.

- When the evidence is sufficient to support the judgment of the court trying the case by agreement without intervention of the jury, on a motion for new trial, the verdict will not be disturbed by the appellate court. Carter v. State, 77 Ga. App. 60, 47 S.E.2d 815 (1948).

Function of appellate court in reviewing verdict.

- Barring error by the trial court, the jury's verdict must be upheld unless it can be shown that there is no substantial evidence to support the verdict, considering the evidence in the light most favorable to appellees, and clothing the verdict with all reasonable inferences to be deduced therefrom. Thus, the United States Court of Appeals' sole function is to ascertain if there is a rational basis in the record for the jury's verdict. Columbus Bank & Trust Co. v. Cohn, 644 F.2d 1040 (5th Cir. 1981).

Trial courts have discretion to grant a new trial on the grounds set forth in O.C.G.A. §§ 5-5-20 and5-5-21, but appellate courts do not. Appellate review is limited to the legal sufficiency of the evidence; even when asked to review a trial court's refusal to grant a new trial on the general grounds, the appellate court must review the case under the sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Plez v. State, 300 Ga. 505, 796 S.E.2d 704 (2017).

Evidence viewed in light most favorable to upholding verdict.

- It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. A reviewing court must view the evidence in a light most favorable to upholding the jury's verdict and any evidence which supports the jury's verdict is sufficient to sustain the trial court's denial of a motion for new trial based on the sufficiency of the evidence. Clark v. United Ins. Co. of Am., 199 Ga. App. 1, 404 S.E.2d 149 (1991).

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, § 245 et seq.

C.J.S.

- 23 C.J.S., Criminal Law, §§ 1972, 1973. 66 C.J.S., New Trial, § 117 et seq.

ALR.

- Abuse of witness by counsel as ground for new trial or reversal, 4 A.L.R. 414.

Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 A.L.R. 779; 95 A.L.R. 1163.

Power of trial court to dismiss defendant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 A.L.R. 187.

Court's power to grant new trial as to both defendants, over their objection, because of verdict holding employer and absolving employee for latter's negligence, 16 A.L.R.2d 969.

Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 29 A.L.R.2d 1199.

Prejudicial effect of misconduct by one other than juror during authorized view by jury in civil case, 45 A.L.R.2d 1128.

Verdict for money judgment which finds for party for ambiguous or no amount, 49 A.L.R.2d 1328.

Disclosure in criminal case of juror's political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 A.L.R.2d 1120.

Discussion, during jury deliberation, of possible insurance coverage as prejudicial misconduct, 47 A.L.R.3d 1299.

Standard for granting or denying new trial in state criminal case on basis of recanted testimony - modern cases, 77 A.L.R.4th 1031.

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.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 A.L.R.5th 1.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 59 A.L.R.5th 1.

5-5-21. Verdict against weight of evidence.

The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.

(Ga. L. 1853-54, p. 46, § 3; Code 1863, § 3641; Code 1868, § 3666; Code 1873, § 3717; Code 1882, § 3717; Civil Code 1895, § 5482; Penal Code 1895, § 1058; Civil Code 1910, § 6087; Penal Code 1910, § 1085; Code 1933, § 70-206.)

Law reviews.

- For survey of cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978).

JUDICIAL DECISIONS

General Consideration

General grounds for new trial are addressed to discretion of trial judge. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Authority to grant new trial.

- No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97, 547 S.E.2d 734 (2001).

Defendant claimed on appeal that a conviction for the unauthorized possession of drugs by an inmate, in violation of O.C.G.A. § 42-5-18(b), was contrary to law, contrary to the evidence, and against the weight of the evidence, and that, on that basis, it was error for the trial court to deny a motion for a new trial, but, under O.C.G.A. § 5-5-21, only the trial court had the authority to grant a new trial on the ground that the verdict was contrary to the weight of the evidence. Collinsworth v. State, 276 Ga. App. 58, 622 S.E.2d 419 (2005).

Defendant's argument that the verdict convicting the defendant of the involuntary manslaughter of defendant's 17-month-old son was decidedly and strongly against the weight of the evidence could only be made to a trial court in a motion for new trial, not to an appellate court on appeal. The appellate court did not have the discretion to grant a new trial on these grounds. Lewis v. State, 304 Ga. App. 831, 698 S.E.2d 365 (2010).

Trial court's attention was clearly directed to the court's discretion under O.C.G.A. §§ 5-5-20 and5-5-21, and there was no indication that the court failed to exercise the court's discretion in denying the new trial motion. Wilson v. State, 302 Ga. 106, 805 S.E.2d 98 (2017).

Discretion rests solely with trial judge.

- Discretion to grant or refuse motions for new trials because verdict is strongly and decidedly against weight of evidence rests solely in presiding judge. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932); Turner v. Masonic Relief Ass'n, 52 Ga. App. 374, 183 S.E. 350 (1936).

Trial judge alone has the authority to grant new trial on ground that the verdict is strongly and decidedly against weight of evidence. Josey v. State, 197 Ga. 82, 28 S.E.2d 290 (1943); Wright v. State, 173 Ga. App. 408, 326 S.E.2d 584 (1985); Hood v. State, 192 Ga. App. 150, 384 S.E.2d 242 (1989); Dixon v. State, 192 Ga. App. 845, 386 S.E.2d 719 (1989); Madaris v. State, 207 Ga. App. 145, 427 S.E.2d 110 (1993).

Evidence supported the defendant's malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant's phone, given that a witness saw the defendant meet the victim at the door of the defendant's house, call the victim a bitch, and yank the victim's arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed it was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532, 796 S.E.2d 671 (2017).

Motion for new trial based on O.C.G.A. § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on O.C.G.A. § 5-5-21, i.e., that the verdict is strongly against the evidence, is a decision that is solely in the discretion of the trial court. An appellate court considers only the sufficiency of the evidence before the jury. Henderson v. State, 304 Ga. 733, 822 S.E.2d 228 (2018).

Duty upon trial judge to exercise discretion.

- Motion for a new trial on grounds set forth in former Code 1933, §§ 70-202 and 70-206 (see O.C.G.A. §§ 5-5-520 and5-5-21) addressed the sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962); Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant's motion for new trial under O.C.G.A. § 5-5-21. The issue was not whether the evidence was sufficient to support the verdict, but whether the verdict was against the weight of the evidence. Manuel v. State, 289 Ga. 383, 711 S.E.2d 676 (2011).

When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court's discretion and weigh the evidence. The trial court did not exercise the court's discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and5-5-21. Walker v. State, 292 Ga. 262, 737 S.E.2d 311 (2013).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant's motion for new trial, requiring remand for the trial court to apply the proper standard to the general grounds and to exercise the court's discretion to sit as a thirteenth juror pursuant to O.C.G.A. §§ 5-5-20 and5-5-21. White v. State, 293 Ga. 523, 753 S.E.2d 115 (2013).

Appellate court vacated the trial court's decision denying the defendant's motion for new trial because the record failed to indicate that the trial court fulfilled the court's duty of exercising the court's discretion under the applicable standard set forth in O.C.G.A. § 5-5-21. Gordon v. State, 329 Ga. App. 2, 763 S.E.2d 357 (2014).

In a murder case, the record indicated that, contrary to the defendant's contention, the trial court was aware of and exercised the court's discretion to weigh the evidence in the court's consideration of the defendant's motion for new trial on the general grounds under O.C.G.A. §§ 5-5-20 and5-5-21 because the trial court specifically responded that the court would not grant a new trial as the thirteenth juror. Allen v. State, 296 Ga. 738, 770 S.E.2d 625 (2015).

Because the trial court expressly and incorrectly stated that the defendant had not advanced the issue that the trial court did not act as the thirteenth juror, the trial court erred in denying the defendant's motion for a new trial, and the case was remanded solely for the trial court to consider the court's discretion to sit as the thirteenth juror. King v. State, 344 Ga. App. 244, 809 S.E.2d 824 (2018).

Discretion to grant new trials should be exercised with caution. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

New trial should be granted only when evidence preponderates heavily against verdict.

- Power to grant new trial under this section should be invoked only in exceptional cases in which evidence preponderates heavily against verdict. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978) (see O.C.G.A. § 5-5-20).

Discretion duty applies no matter how many verdicts have gone against movant.

- In all cases when motion for new trial is being passed on by trial judge, no matter how many verdicts have gone against losing party, law places on the judge a solemn responsibility to exercise discretion in granting or refusing new trial. Mills v. State, 188 Ga. 616, 4 S.E.2d 453 (1939).

Discretion given trial courts and limitations on appellate review.

- Trial courts have discretion to grant a new trial on the grounds set forth in O.C.G.A. §§ 5-5-20 and5-5-21, but appellate courts do not. Appellate review is limited to the legal sufficiency of the evidence; even when asked to review a trial court's refusal to grant a new trial on the general grounds, the appellate court must review the case under the sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Plez v. State, 300 Ga. 505, 796 S.E.2d 704 (2017).

Trial court applied incorrect standard.

- Although the evidence was sufficient to convict the defendant as a party of sexual exploitation of children, aggravated sodomy, child molestation, and first degree cruelty to children, the judgment was vacated because the successor judge erred in denying the defendant's motion for a new trial as there was no evidence that the successor judge reviewed the evidence under the appropriate discretionary standard in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205, 767 S.E.2d 798 (2014).

Trial court applied the wrong standard when reviewing the defendant's motion for a new trial based on general grounds, applying the sufficiency of the evidence standard rather than the standard embodied in O.C.G.A. §§ 5-5-20 and5-5-21. Atkins v. State, 342 Ga. App. 849, 805 S.E.2d 612 (2017).

Because the trial court failed to apply the proper standard when considering the defendant's motion for new trial as the court found that the testimony of the victim and the investigator was sufficient under the Jackson v. Virginia, 443 U.S. 307 (1979) standard, the judgment was vacated and the case was remanded for consideration of the motion for new trial under the proper legal standard. Cook v. State, 351 Ga. App. 845, 833 S.E.2d 544 (2019).

On motion for new trial, court may weigh evidence and consider credibility of witnesses. If court reaches conclusion that verdict is contrary to weight of evidence and that miscarriage of justice may have resulted, verdict may be set aside and new trial granted. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979).

Trial court did not apply the wrong standard in denying a defendant's motion for new trial by noting, in response to the defendant's argument that the eyewitnesses were not credible, that the credibility of the witnesses was for the jury unless "they were just way in left field." Tolbert v. State, 313 Ga. App. 46, 720 S.E.2d 244 (2011).

Role of court as thirteenth juror.

- Although the trial court exercised the court's discretion as the thirteenth juror to assess the credibility of at least one witness, the court failed to properly fulfill the court's affirmative statutory duty to independently weigh the trial evidence and identify any offending testimony. It was incumbent upon the trial court to then examine and weigh the remaining evidence and independently consider whether the jury's verdict was contrary to the evidence or was against the weight of the evidence. State v. Reid, 331 Ga. App. 275, 770 S.E.2d 665 (2015).

Motion for JNOV considered as motion for new trial.

- Although a father's motion seeking relief from a child support order was styled as a JNOV, and there had been no jury verdict, the trial court had plenary authority to consider it as a motion for new trial under O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21, or a motion to set aside the judgment, based on the substance of the motion. Wheeler v. Akins, 327 Ga. App. 830, 761 S.E.2d 383 (2014).

Appellate court must presume trial court exercised discretion.

- Although a trial court's order denying the defendant's motion for new trial did not state that the trial court exercised the court's discretion as a thirteenth juror, the appellate court presumed that the trial court knew the rule as to the necessity of exercising the court's discretion in granting or refusing new trials; the order denying a new trial was taken to mean that the judge had, in the exercise of his or her discretion, approved the verdict. Butts v. State, 297 Ga. 766, 778 S.E.2d 205 (2015).

Although the trial court's order denying the defendant's motion for new trial did not explicitly state that the court exercised the court's broad discretion as the thirteenth juror, the appellate court presumed that the trial judge knew the rule as to the necessity of exercising the judge's discretion, and that the judge did exercise discretion, in the absence of evidence to the contrary. Morris v. State, 303 Ga. 192, 811 S.E.2d 321 (2018).

All conflicts are resolved to favor verdict in determining whether there is any evidence supporting the verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979).

Inference in favor of verdict.

- After verdict, in passing upon motion for new trial, that view of the evidence which is most unfavorable to the accused must be taken, for every presumption and every inference is in favor of the verdict. Brown v. State, 71 Ga. App. 522, 31 S.E.2d 85 (1944).

Motion for new trial must be made before trial court.

- Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448, 738 S.E.2d 277 (2012).

Cited in Richmond & D.R.R. v. Allison, 89 Ga. 567, 16 S.E. 116 (1892); Western & Atl. R.R. v. Hughes, 278 U.S. 496, 49 S. Ct. 231, 73 L. Ed. 473 (1929); Jackson Disct. Co. v. Merck, 50 Ga. App. 381, 178 S.E. 208 (1935); Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Rogers v. Rogers, 52 Ga. App. 548, 184 S.E. 404 (1936); Southern Ry. v. Lunsford, 57 Ga. App. 53, 194 S.E. 602 (1937); Carter v. Powell, 57 Ga. App. 360, 195 S.E. 466 (1938); Davis v. State, 202 Ga. 13, 41 S.E.2d 414 (1947); Halliburton v. Collier, 75 Ga. App. 316, 43 S.E.2d 339 (1947); Law v. State, 92 Ga. App. 604, 89 S.E.2d 550 (1955); Martin v. State, 95 Ga. App. 519, 98 S.E.2d 105 (1957); O'Quinn v. James, 127 Ga. App. 94, 192 S.E.2d 507 (1972); Kramer v. Hopper, 234 Ga. 395, 216 S.E.2d 119 (1975); Wilson v. State, 145 Ga. App. 33, 243 S.E.2d 304 (1978); Hembree v. Ideal Bldrs., Inc., 158 Ga. App. 574, 281 S.E.2d 328 (1981); Johnson v. Wills Mem. Hosp. & Nursing Home, 178 Ga. App. 459, 343 S.E.2d 700 (1986); Crump v. State, 183 Ga. App. 43, 357 S.E.2d 863 (1987); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Stinson v. State, 185 Ga. App. 543, 364 S.E.2d 910 (1988); Towns v. State, 185 Ga. App. 545, 365 S.E.2d 137 (1988); Hart v. Fortson, 263 Ga. 389, 435 S.E.2d 45 (1993); Willis v. State, 263 Ga. 597, 436 S.E.2d 204 (1993); United Servs. Auto. Ass'n v. Gottschalk, 212 Ga. App. 88, 441 S.E.2d 281 (1994); Harper v. State, 213 Ga. App. 611, 445 S.E.2d 300 (1994); Leeks v. State, 226 Ga. App. 227, 483 S.E.2d 691 (1997); In re C.I.W., 229 Ga. App. 481, 494 S.E.2d 291 (1997); High v. Parker, 234 Ga. App. 675, 507 S.E.2d 530 (1998); Taylor v. State, 259 Ga. App. 457, 576 S.E.2d 916 (2003); Mitchell v. State, 262 Ga. App. 759, 586 S.E.2d 686 (2003); Newton v. State, 261 Ga. App. 762, 583 S.E.2d 585 (2003); Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480 (2009); Delgiudice v. State, 308 Ga. App. 397, 707 S.E.2d 603 (2011); Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011); Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011); Stepho v. State, 312 Ga. App. 495, 718 S.E.2d 852 (2011); State v. Jackson, 295 Ga. 825, 764 S.E.2d 395 (2014); Chadwick v. Brazell, 331 Ga. App. 373, 771 S.E.2d 75 (2015); Bowen v. State, 299 Ga. 875, 792 S.E.2d 691 (2016); Smith v. State, 350 Ga. App. 496, 829 S.E.2d 776 (2019); Irving v. State, 351 Ga. App. 779, 833 S.E.2d 162 (2019); State v. Hamilton, Ga. , 839 S.E.2d 560 (2020).

Judgment Notwithstanding Verdict

New trial may be granted without demanding a judgment n.o.v. for the weight of evidence may be on one side, yet there be some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence, the verdict may still be against the weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Denial of new trial on general grounds unexcepted to preclude judgment notwithstanding verdict on appeal.

- When trial judge denies motion for new trial on general grounds, the judge finds that verdict is not against weight of evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support verdict or that evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Application

Proper standard of review.

- In a prosecution for, inter alia, hijacking a motor vehicle, a trial court incorrectly applied the standard in Jackson v. Virginia, 443 U.S. 307 (1979), when deciding a defendant's challenge in a motion for a new trial as to the weight of the evidence; the trial court had to reconsider the claim pursuant to O.C.G.A. § 5-5-21. Rutland v. State, 296 Ga. App. 471, 675 S.E.2d 506 (2009).

Trial court, on the court's own motion, did not err in granting the defendant a new trial on general grounds because the trial court's written order unequivocally applied the correct standard of review in granting the new trial, explaining that the court was granting a new trial because the verdict was contrary to the evidence and principles of justice and equity. State v. Hamilton, 306 Ga. 678, 832 S.E.2d 836 (2019).

Jury's fact finding not final until verdict approved when motion for new trial is made.

- No finding of fact by jury is final or conclusive when motion for new trial is presented, unless and until that verdict is approved by trial judge. Mills v. State, 188 Ga. 616, 4 S.E.2d 453 (1939).

Trial court's written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51. Jackson Nat'l Life Ins. Co. v. Snead, 231 Ga. App. 406, 499 S.E.2d 173 (1998).

There was no merit to the defendant's claim that a new trial on kidnapping charges was warranted on general grounds because the trial court's statement that the evidence against the defendant was very substantial, the verdict was not against the weight of the evidence, the evidence supported the verdict, and the verdict was not contrary to the evidence as the evidence showed that the trial court understood the court's discretion and declined to exercise discretion. Alexander v. State, 348 Ga. App. 859, 825 S.E.2d 405 (2019).

Denial of new trial becomes law of case.

- Absent specific appeal from ruling on motion for new trial or enumerating the ruling as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

No double jeopardy bar.

- Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

Successful motion for new trial at trial level, precludes later plea of former jeopardy.

- Motion for new trial, if granted at trial level, is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

Grant of new trial under section not same as finding evidence legally insufficient.

- Grant of new trial by trial court on ground that verdict is against the weight of evidence under this section, does not amount to a finding that evidence is legally insufficient, and does not thereby bar a second trial under the double jeopardy clause of the U.S. Constitution. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979).

Distinction between legally insufficient evidence and verdict against weight of evidence.

- There is a distinction at law between a decision holding the evidence legally insufficient and a discretionary decision of the trial court that the verdict is against the weight of the evidence. Ricketts v. Williams, 242 Ga. 303, 248 S.E.2d 673 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059, 59 L. Ed. 2d 97 (1979).

Trial court's review of the evidence under O.C.G.A. § 5-5-21 differs from its review of the evidence on a motion for a directed verdict under O.C.G.A. § 17-9-1. In the latter case, the trial court has a duty to grant a directed verdict of acquittal when there is no conflict in the evidence and it clearly demands a verdict of acquittal as a matter of law. Lavertu v. State, 325 Ga. App. 709, 754 S.E.2d 663 (2014).

When some evidence supports verdict.

- When trial judge has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not error. Kendrick v. Kendrick, 218 Ga. 460, 128 S.E.2d 496 (1962).

Because the state proved venue through testimony that the address of the crime scene was in a specific county and because counsel's actions were within the bounds of reasonable professional conduct, the trial court properly denied the defendant's motion for a new trial. Henry v. State, 279 Ga. 615, 619 S.E.2d 609 (2005).

Trial court did not err in denying DUI defendant's motion for new trial under O.C.G.A. § 5-5-21 based on the lack of definitive evidence of intoxication from field sobriety tests and the defendant's acquittal on the charge of failure to maintain a lane because the defendant's blood alcohol level was 0.159 and two or three empty airplane-size vodka bottles were in the defendant's car. Lavertu v. State, 325 Ga. App. 709, 754 S.E.2d 663 (2014).

Sufficient evidence supported the defendant's conviction for armed robbery and other crimes based on the victim identifying the defendant as one of the two robbers and as the robber who had struck the victim with a gun and the defendant was apprehended a short distance from the attack in possession of the victim's backpack and a pistol within minutes of the attack. Cooper v. State, 342 Ga. App. 351, 801 S.E.2d 589 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. 2018), cert. denied, 138 S. Ct. 2039, 2018 U.S. LEXIS 3176, 201 L. Ed. 2d 288 (U.S. 2018).

In a suit resulting in a $ 2.2 million jury verdict for a passenger on a gambling ship who fell into a hatch that was open and unwatched, the evidence supported the jury's attribution of 100 percent of the fault to the ship owner, given that a worker was supposed to be guarding the hatch but was not at the time the passenger fell, and there was no evidence that the passenger was at fault. Golden Isles Cruise Lines, Inc. v. Lowie, 350 Ga. App. 1, 827 S.E.2d 703 (2019).

Expert evidence.

- Driver's motion for a new trial was properly denied when an expert witness in the field of accident reconstruction opined that the second driver's collision was unavoidable since the driver changed lanes immediately in front of the second driver's vehicle. Flynn v. Mack, 259 Ga. App. 882, 578 S.E.2d 488 (2003).

In a suit when plaintiff mulch seller sought money owed for plastic mulch, and defendants, two individuals doing business as a company, counterclaimed regarding crop damage due to the mulch deteriorating prematurely, the trial court did not abuse the court's discretion in denying the company's motion for a new trial after the jury returned a verdict in the seller's favor because, despite the company's claim on appeal that the evidence supported a finding of breach of express warranty, the testimony of the seller's vice-president that the seller advised customers on the order form that it could not provide a warranty, provided some evidence to support the verdict. McLeod v. Robbins Ass'n, 260 Ga. App. 347, 579 S.E.2d 748 (2003).

Inadequacy of damages for pain and suffering.

- Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705, 181 S.E. 315 (1935); Brown v. Garcia, 154 Ga. App. 837, 270 S.E.2d 63 (1980).

Improper award of damages.

- Trial court erred in denying defendants' motion for a new trial pursuant to O.C.G.A. § 5-5-21 in an action by a produce company and a storage company for damages which arose from an alleged joint venture to grow onions, and the packing, grading, and storage of onions thereafter; the trial court erred in awarding the produce company the total amount of lost profits for onions which the defendant did not account for, as the agreement provided that the defendants and the company would split the profits or losses evenly, and because the storage company failed to provide any evidence of the company's anticipated expenses, and therefore the company's proof of lost profits was insufficient as a matter of law. Williamson v. Strickland & Smith, Inc., 263 Ga. App. 431, 587 S.E.2d 876 (2003).

Fact that verdict is generous is not basis for setting verdict aside.

- Trial judge may exercise sound discretion in refusing new trial in case where verdict may be decidedly and strongly against weight of evidence, but a generous verdict will not be set aside merely for that reason. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937).

Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909).

Although plaintiff introduced more witnesses than defendant, judge's refusal of new trial is not error. McGriff v. McGriff, 154 Ga. 560, 115 S.E. 21 (1922).

Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448, 42 S.E. 785 (1902).

Court refusal to accept verdict not abuse of discretion.

- In action concerning a stock sales agreement, trial court did not abuse the court's discretion in declining to accept a jury verdict that required the defendant specifically to perform the agreement, but also recommended that bank balance and surplus stock in a warehouse be turned over to the defendant. Brown v. Reeves, 168 Ga. App. 403, 309 S.E.2d 654 (1983).

Court abuses discretion by refusing to set aside excessive award.

- Trial judge fails to exercise the discretion vested in the judge by law when the judge agrees that the amounts awarded to the plaintiff by the jury are excessive but refuses to set the amount aside or order a new trial on the basis that the judge does not want to impose the judge's opinion upon the jury. Story v. Monteith, 176 Ga. App. 853, 338 S.E.2d 32 (1985), rev'd on other grounds, 255 Ga. 528, 341 S.E.2d 1 (1986).

Newly discovered evidence and alleged perjury insufficient for new trial.

- Trial court did not err in denying a defendant's motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 based on newly discovered evidence because the "new" evidence - that the defendant's girlfriend got "five hundred" from the defendant in connection with the incident - did not come to the defendant's knowledge since the prior trial, and the girlfriend's alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555, 669 S.E.2d 514 (2008).

Motion for judgment notwithstanding verdict as motion for new trial in DUI case.

- Assuming that the defendant's post-verdict motion for judgment notwithstanding the verdict was a motion for new trial, it was, nevertheless, wholly without merit because the evidence was sufficient to convict the defendant of driving under the influence (to the extent that the defendant was a less-safe driver, O.C.G.A. § 40-6-391(a)(1)) because a police officer administered two field-sobriety tests, and defendant exhibited clues of impairment on each. Masood v. State, 313 Ga. App. 549, 722 S.E.2d 149 (2012).

Judgment sustaining double jeopardy plea in bar reversed in murder case.

- After a mother and daughter were charged with the murder of the daughter's boyfriend, the judgment sustaining the double jeopardy plea in bar on the basis of insufficient evidence in the first trial was reversed because there was evidence of a common criminal intent, including the women's presence, companionship, and conduct before and immediately after the fatal shooting. State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017).

New trial properly granted in criminal case.

- After the defendant was found guilty of felony murder and other crimes in connection with the shooting death of the defendant's ex-husband, the trial court properly exercised the court's discretion to grant the defendant a new trial on the general grounds because the court concluded that the jury's guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity; and the supreme court would not disturb the first grant of a new trial based on the general grounds unless the trial court abused the court's discretion in granting it and the law and the facts demanded the verdict rendered. State v. Hamilton, 299 Ga. 667, 791 S.E.2d 51 (2016).

Trial court did not err in granting the defendant's motion for new trial on the general grounds because, in the defendant's first motion for new trial, the defendant did not waive or abandon the defendant's claims that the verdict was contrary to the evidence and justice, and against the weight of the evidence, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon the defendant's ineffective assistance claim; and by failing to raise the claims in the defendant's brief following the evidentiary hearing. State v. Byrd, 341 Ga. App. 421, 801 S.E.2d 99 (2017).

Following the defendant's murder trial, the trial court did not err in granting the defendant's motion for a new trial on general grounds, sitting as the thirteenth juror, pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 because the trial court's written order, although provided by the defendant, did not reveal any improper basis for the grant of a new trial and showed that the trial court properly exercised the court's discretion. State v. Holmes, 306 Ga. 647, 832 S.E.2d 777 (2019).

New trial properly denied in criminal case.

- Because, at the hearing on the defendant's motion for new trial, the defendant clarified that the defendant was solely arguing the points raised in the defendant's amended motion, and the defendant repeatedly stated that the defendant's claim was that the evidence was insufficient to support the defendant's convictions, the defendant could not now be heard to complain that the trial court failed to exercise the court's discretion under O.C.G.A. §§ 5-5-20 and5-5-21 in finding that the verdict was strongly against the weight of the evidence or contrary to evidence and the principles of justice and equity. Gray v. State, 298 Ga. 885, 785 S.E.2d 517 (2016), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

Trial court did not err in denying the defendant's motion for new trial on general grounds because the victim's testimony was sufficient to establish that the defendant was a party to armed robbery and aggravated assault. Carter v. State, 339 Ga. App. 140, 793 S.E.2d 459 (2016).

Pretermitting whether trial counsel was deficient in not calling the defendant as a witness at a Jackson-Denno hearing, the defendant failed to show prejudice entitling the defendant to a new trial because the defendant testified at trial about the circumstances of giving an inculpatory statement that the defendant spoke with police for more than four hours, that the police falsely told the defendant the police had DNA evidence, that the defendant had not slept in three days, and that the defendant was worried about the defendant's children. Davis v. State, 350 Ga. App. 69, 827 S.E.2d 910 (2019).

Defendant's claim that the trial court failed to exercise the court's discretion as the thirteenth juror in denying the defendant's motion for a new trial failed as the court never explicitly declined to consider the credibility of witnesses or make clear the court's belief the court had no discretion to grant a new trial despite disagreeing with the jury's verdict. Massey v. State, 346 Ga. App. 233, 816 S.E.2d 100 (2018), cert. denied, 2019 Ga. LEXIS 80 (Ga. 2019).

Language of the trial court's order did not show that the court failed to exercise discretion by denying the defendant's motion for a new trial because the trial court expressly addressed the defendant's argument that the verdict was contrary to the evidence and strongly against the weight of the evidence and concluded that the evidence was sufficient under the case law standard and that the verdict was not contrary to the law and principles of justice. Davis v. State, 350 Ga. App. 69, 827 S.E.2d 910 (2019).

Following the defendant's murder trial, the trial court did not err in denying the defendant's motion for new trial based on the general grounds, O.C.G.A. ÝÝ 5-5-20 and5-5-21, because multiple witnesses saw the defendant shoot the victim in a mall parking lot, chase the victim down, and then shoot the victim again; the jury was not required to credit the defendant's testimony that the victim had a gun. A hearing on the motion was not required. Bundel v. State, Ga. , 840 S.E.2d 349 (2020).

Evidence was sufficient to prove that the defendant fatally shot the victim, and that the defendant did not act in self-defense, because the jury was entitled to give greater weight to the evidence that the defendant had a gun cocked and ready before the meeting with the victim, while the victim was unarmed; the defendant told the homeowner to make the scene look like a burglary and threatened the homeowner; the defendant disposed of the gun and clothes; and there was evidence that the defendant was engaged in a felony drug deal at the time of the shooting, which would preclude the defendant's self-defense claim; thus, the defendant was not entitled to a new trial based on general grounds. Bannister v. State, 306 Ga. 289, 830 S.E.2d 79 (2019).

Defendant's murder conviction was supported by evidence that the defendant was a party to the crime, O.C.G.A. § 16-2-20, although the defendant's friend was the actual shooter, because the defendant drove the vehicle with the other perpetrators and got out, armed, and confronted the victim before the defendant's friend shot the victim; defendant then drove the car away with the others and then ran away with the shooter after crashing the car. The trial court did not err in denying the defendant's motion for a new trial. Williams v. State, 307 Ga. 689, 838 S.E.2d 314 (2020).

Insufficient evidence of asportation for kidnapping conviction.

- Defendant's conviction for kidnapping required reversal because the movement of the victim from one bedroom to another did not further isolate the victim or decrease the potential for rescue, thereby posing no significant danger to the victim independent of the danger posed by the sexual assault and rape; thus, the evidence of asportation was insufficient. Sellers v. State, 325 Ga. App. 837, 755 S.E.2d 232 (2014).

Denial of motion for new trial proper in shoplifting case.

- Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial with regard to the defendant's trial for felony shoplifting because the testimony of the store's loss prevention officer established each element of the crime and provided sufficient evidence to support the conviction. Parham v. State, 320 Ga. App. 676, 739 S.E.2d 135 (2013).

Appeal or Certiorari From Denial of New Trial

Appellate court does not have same discretion as trial judge who approved verdict. Southern Ry. v. Brock, 132 Ga. 858, 64 S.E. 1083 (1909).

Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979).

Because the defendant failed to seek a new trial on the general grounds under O.C.G.A. §§ 5-5-20 and5-5-21, that the verdict was against the weight of the evidence and contrary to the principles of justice and equity, but rather sought a new trial on the grounds of arguments made at trial, the appellate court could not address these grounds. Slaton v. State, 296 Ga. 122, 765 S.E.2d 332 (2014).

Function of appellate court is to review sufficiency of evidence, not to determine the weight of the evidence. Though evidence might have authorized a different verdict or verdict is supported by only slight evidence or evidence is conflicting or preponderates against the verdict, when no material error of law appears, the appellate court will not disturb the trial judge's judgment in overruling the motion for new trial. McBowman v. Merry, 104 Ga. App. 454, 122 S.E.2d 136 (1961).

Discretion of superior court, on certiorari, to grant new trial in lower court.

- Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950).

First grant of new trial is not normally reviewable by appellate courts.

- First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Ruling on a motion for new trial under Code 1933, § 70-206 (see O.C.G.A. § 5-5-21) or former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20) did not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148, 240 S.E.2d 41 (1977), vacated on other grounds, 438 U.S. 902, 98 S. Ct. 3119, 57 L. Ed. 2d 1145 (1978).

Sole question on appeal from denial on general grounds.

- Appellate court will not disturb trial court's refusal to grant new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be character of witnesses. McBowman v. Merry, 104 Ga. App. 454, 122 S.E.2d 136 (1961).

On appeal of denial of motion for new trial based on general grounds, sole question for appellate court is whether there is any evidence to support the verdict. Burnet v. Bazemore, 122 Ga. App. 73, 176 S.E.2d 184 (1970).

Trial judge's denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. Ricketson v. Fox, 247 Ga. 162, 274 S.E.2d 556 (1981).

Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and5-5-21, the language used by the trial court in the court's discretionary determinations that the evidence at trial was not "sufficiently close" to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court's discretion under the relevant statutory provisions. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013).

Appellate court cannot set aside verdict on general grounds trial judge could have relied upon.

- In considering case in which verdict of jury has approval of trial judge, appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of the discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670, 162 S.E. 824 (1932).

Because two witnesses heard the defendant threaten to use a gun moments prior to the shooting, and eyewitnesses saw the defendant shoot the victim, the evidence was sufficient to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim, and the trial court did not err when the court denied the defendant's motion for new trial. Batten v. State, 295 Ga. 442, 761 S.E.2d 70 (2014).

Appellate court cannot grant new trial if any evidence supports verdict.

- While appellate division of Municipal Court of Atlanta may grant new trial when no evidence supports the verdict, when there is some evidence on which the verdict could be based, and such verdict has the approval of the trial judge, the appellate division of Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass'n, 52 Ga. App. 374, 183 S.E. 350 (1936).

Contrary to the defendant's argument, the trial court reviewed the defendant's motion for new trial under the discretionary thirteenth juror standard based on the court's own independent review of the trial record and finding no discrepancy between the jury's conclusions regarding the weight of the evidence and the credibility of the witnesses and the court's own views of those matters; moreover, the transcript showed clearly that the court understood the court's obligations as the so-called thirteenth juror. Burney v. State, 299 Ga. 813, 792 S.E.2d 354 (2016).

Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant's motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780, 466 S.E.2d 667 (1996).

New trial motion denied in criminal case.

- Evidence was sufficient to support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant's teenage children made a cell phone call to the children's parents' home to tell the parents that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim's death. Gear v. State, 288 Ga. 500, 705 S.E.2d 632 (2011), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because neither the trial court's order nor the court's statement during the hearing that the court was "just going to stick by what the jury did," demonstrated that the court failed to exercise the discretion afforded to it under O.C.G.A. § 5-5-21 and merely showed the court's manner of expressing that the court was exercising the court's discretion against setting aside the jury's verdict. Dixon v. State, 341 Ga. App. 255, 800 S.E.2d 11 (2017).

Appellate court had no basis for disturbing the trial court's exercise of discretion in denying the defendant's motion for a new trial because the order reflected that the trial court performed the court's duty using the proper legal standard. Lundy v. State, 341 Ga. App. 767, 801 S.E.2d 629 (2017).

Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199, 818 S.E.2d 268 (2018).

Trial court erred by denying the defendant's motion for new trial as abandoned instead of ruling on the merits of the defendant's arguments that the verdict of the jury was contrary to evidence and the principles of justice and equity and was contrary to the weight of evidence because counsel's failure to file a brief on the hearsay issues constituted an abandonment of the opportunity to make further argument on those issues rather than the entire motion for new trial. Wilson v. State, 349 Ga. App. 386, 825 S.E.2d 843 (2019).

Following the defendant's murder trial, the trial judge properly exercised the judge's discretion as the thirteenth juror under O.C.G.A. §§ 5-5-20 and5-5-21 in finding that "the state had presented ample evidence" and that "the evidence was not sufficiently close nor represented a failure of justice in general." Strother v. State, 305 Ga. 838, 828 S.E.2d 327 (2019).

Trial court did not abuse the court's discretion by denying the defendant's motion for new trial on general grounds because several codefendants testified that the defendant was a coconspirator and a participant in the victim's robbery, there was evidence that the defendant placed the telephone call to summon the victim, that the defendant was the first to confront the victim, and that the robbery was the defendant's idea. Smith v. State, 350 Ga. App. 336, 829 S.E.2d 408 (2019).

Illustrative cases.

- Trial court properly denied defendant's motion for a new trial despite defendant's claim that there was insufficient evidence to prove the identity and value of the items which defendant shoplifted, as there was sufficient evidence to prove the identity and value of the items given that: (1) a store manager saw defendant place items from the manager's store into the trunk of defendant's car and identified defendant in a showup identification less than 30 minutes later, after the defendant was stopped for shoplifting at a second store; (2) the manager from the first store identified a number of items that were found in the defendant's trunk as coming from the first store based on the store code markings on the items; and (3) the packages contained pricing labels. Horne v. State, 260 Ga. App. 640, 580 S.E.2d 644 (2003).

Because a condemnee did not claim lost profits or business losses, the trial court properly limited the condemnee's evidence to the value of the property taken and consequential damages to the remainder; because the jury's valuation was within the range of the evidence, the trial court properly denied the condemnee's motion for a new trial. Thornton v. DOT, 275 Ga. App. 401, 620 S.E.2d 621 (2005).

In a suit on a guaranty, the trial court did not err in denying a guarantor's motion for a new trial on general grounds, as the jury's award fell within the range of damages established by the evidence, the guarantor consented to the bank's modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court's instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698, 627 S.E.2d 417 (2006).

Although defendant received effective assistance from trial counsel, because defendant did not waive or abandon defendant's claims under O.C.G.A. §§ 5-5-20 and5-5-21, the trial court erred in denying defendant's motion for new trial. Hartley v. State, 299 Ga. App. 534, 683 S.E.2d 109 (2009).

Trial court did not err in refusing to grant the defendant's motion for a new trial under O.C.G.A. § 5-5-21 because the evidence establishing that the defendant and the victims had engaged in a heated argument, which escalated to preparations for a physical altercation, was sufficient to sustain the defendant's voluntary manslaughter conviction, O.C.G.A. § 16-5-2(a); given the heated exchange and the defendant's belief that the defendant was in serious danger, there was sufficient provocation to excite the passion necessary for voluntary manslaughter, and the jury was authorized to reject the defendant's claim of self-defense under O.C.G.A. § 16-3-21(a) and conclude that the defendant was so influenced and excited that the defendant reacted passionately, rather than simply in self defense, when the defendant shot an unarmed victim. White v. State, 312 Ga. App. 421, 718 S.E.2d 335 (2011).

Trial court was aware of the court's responsibility as the "thirteenth juror" and, despite the court's mention of the sufficiency of the evidence at trial, the court exercised the court's discretion accordingly when denying the defendant's motion for a new trial after citing personal observations of witnesses and evidence at trial. Perdue v. State, 298 Ga. 841, 785 S.E.2d 291 (2016).

Trial court failed to exercise the court's discretion as the "thirteenth juror" because, rather than reweighing the evidence presented at trial, the court applied a sufficiency-of-evidence standard when the court considered the defendant's motion for new trial on general grounds. Holmes v. State, 306 Ga. 524, 832 S.E.2d 392 (2019).

Denial of motion for new trial improper.

- Defendant was entitled to a new trial because the order denying the defendant's motion for a new trial made only the legal determination that the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), and did not show that the successor judge exercised discretion, weighed evidence, and acted as the thirteenth juror in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205, 767 S.E.2d 798 (2014).

Trial court erred by denying the appellant's motion for a new trial because the motion hearing transcript clearly showed that the appellant requested the trial court to exercise the court's discretion to review the evidence as a thirteenth juror, but in the court's order denying the motion, the trial court stated that, "The testimony and the other evidence introduced at trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt," which was not the proper standard of review. Gomillion v. State, 296 Ga. 678, 769 S.E.2d 914 (2015).

RESEARCH REFERENCES

C.J.S.

- 23 C.J.S., Criminal Law, § 1973. 66 C.J.S., New Trial, §§ 117, 125, 237 et seq., 283.

ALR.

- Power of court to reduce or increase verdict without giving party affected the option to submit to a new trial, 53 A.L.R. 779; 95 A.L.R. 1163.

Power of trial court to dismiss defendant in criminal case for insufficiency of evidence after submitting case to jury or after verdict of guilty, 131 A.L.R. 187.

Court's power to grant new trial as to both defendants, over their objection, because of verdict holding employer and absolving employee for latter's negligence, 16 A.L.R.2d 969.

5-5-22. Illegal admission or exclusion of evidence.

The courts may grant new trials in all cases when any material evidence may be illegally admitted to or illegally withheld from the jury over the objection of the movant.

(Ga. L. 1853-54, p. 46, § 1; Code 1863, § 3638; Code 1868, § 3663; Code 1873, § 3714; Code 1882, § 3714; Civil Code 1895, § 5478; Penal Code 1895, § 1059; Civil Code 1910, § 6083; Penal Code 1910, § 1086; Code 1933, § 70-203.)

Cross references.

- Evidence generally, T. 24.

Law reviews.

- For article, "A Discussion of the 1957 Amendments to Rules of Practice and Procedure in Georgia," see 19 Ga. B.J. 395 (1957).

JUDICIAL DECISIONS

General Consideration

If evidence is admissible for any purpose, the admission of that evidence will not cause a new trial. West v. West, 199 Ga. 378, 34 S.E.2d 545 (1945).

Test as to whether illegal evidence warrants new trial.

- Error of admitting illegal evidence must be such as induced or largely contributed to erroneous finding, and such error that if new trial is granted, result should in all probability be different on another trial. Daughtry v. Savannah & S. Ry., 1 Ga. App. 393, 58 S.E. 230 (1907).

When evidence of guilt is overwhelming.

- When evidence is overwhelming that the defendant is guilty, even errors in admission or rejection of testimony will not operate so as to require new trial. Brannon v. State, 21 Ga. App. 328, 94 S.E. 259 (1917). But see Thigpen v. Batts, 199 Ga. 161, 33 S.E.2d 424 (1945).

When evidence rejected relates to matter collateral to main transaction, and evidence touching main transaction makes a clear case of guilt, rejection of such evidence does not in all cases require grant of new trial. Green v. State, 154 Ga. 117, 113 S.E. 536 (1922).

Ruling upon admissibility of testimony may be reversed by motion for new trial. Eaves v. Field & Son, 8 Ga. App. 69, 68 S.E. 556 (1910).

Admission of illegal testimony on one side will not justify illegal rebutting testimony on other. Two wrongs do not make a right. Housing Auth. v. Kolokuris, 110 Ga. App. 869, 140 S.E.2d 239 (1965).

Evidence not conforming to pleadings, admitted without objection.

- Although pleadings may not present whole issue, if it is fully made by evidence without objection, it is too late, after verdict, for losing party, to make that the ground of a motion for new trial. Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674, 171 S.E. 306 (1933).

Sufficiency of the evidence.

- Because an accomplice's testimony was corroborated by defendant's recent possession of a stolen boat as well as defendant's flight from the scene of the crime, the evidence was sufficient to convict the defendant of theft by taking; consequently, the trial court properly denied the defendant's motion for a new trial. Johnson v. State, 275 Ga. App. 161, 620 S.E.2d 433 (2005).

There was sufficient evidence to support a defendant's conviction for felony murder of the love interest of the defendant's spouse, and the trial court did not err by denying the defendant's motions for a directed verdict or for a new trial; the trial court properly concluded that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial based on the testimony of a state psychiatrist who determined that the defendant had some intellectual limitations and a problem with literacy, but found the defendant capable of rational and logical discussion about the circumstances of the incident to be tried, was capable of assisting in the defense, and understood the nature and object of the legal proceedings. The trial court also did not err by refusing the defendant's requested jury charges as the charges either did not relate to the evidence or the charge given was all that was necessary. Velazquez v. State, 282 Ga. 871, 655 S.E.2d 806 (2008).

Inadmissible testimony given on cross examination that is unresponsive to the question.

- While answer that is responsive to question on cross-examination will not be ruled out although it would otherwise have been inadmissible as evidence, testimony that is inadmissible, which is given on cross-examination but is not responsive to question, should be ruled out; and it is error to overrule the motion to exclude it. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939).

Admission of character evidence.

- Because evidence of defendant's gang membership was admissible both as part of the res gestae of the crime and to show motive, the trial court properly denied the defendant's motions in limine and for a new trial, even though the evidence implicated defendant's character. Garibay v. State, 275 Ga. App. 170, 620 S.E.2d 424 (2005).

Trial court did not err in denying the defendant's motion for a mistrial after an investigating officer testified on cross- examination that the defendant gave the officer a statement right after the defendant had talked with the defendant's parole officer because the testimony followed defense counsel's question regarding the content, not the timing, of the defendant's statement; a passing reference to a defendant's record does not place his or her character in evidence, and a nonresponsive answer that impacts negatively on a defendant's character does not improperly place his or her character in issue. Lanier v. State, 288 Ga. 109, 702 S.E.2d 141 (2010).

Similar transaction evidence.

- Trial court properly denied defendant's motion for a new trial, challenging the admission of similar transaction evidence, because the similar transaction evidence properly corroborated the identity, intent, and course of conduct defendant engaged in with regard to two other home invasions with several other perpetrators that also included the rape of a victim. Grier v. State, 290 Ga. App. 59, 658 S.E.2d 827 (2008), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Admission of telephone conversation between defendant and mother.

- Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial, which was based on the admission of a recorded telephone conversation between the defendant and defendant's mother, who stated "because it's on your record," in response to why the defendant could not be disappointed if the defendant was denied bond; the comment was fleeting and was not a direct comment about the defendant's criminal history, and the mother did not comment on the content of the defendant's criminal record or even say, with certainty, that one did or did not exist. Hamrick v. State, 304 Ga. App. 378, 696 S.E.2d 403 (2010).

Alleged prosecutorial misconduct.

- Because a prosecutor's comments were directed at defense counsel's failure to rebut or explain the state's evidence and the prosecutor made a permissible analogy, there was no prosecutorial misconduct; consequently, the trial court did not err in denying defendant's motion for a new trial. Duffy v. State, 271 Ga. App. 668, 610 S.E.2d 620 (2005).

Disposition of case on diminished record.

- Trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that the evidence was improperly received at the trial and then dispose of the case on the basis of the diminished record. Mays v. Daniels, 179 Ga. App. 677, 347 S.E.2d 642 (1986).

Coindictee's statement on polygraph examination.

- Trial court did not abuse the court's discretion by declining to declare a mistrial when a coindictee testified that the coindictee had taken a polygraph examination because the trial court's prompt curative instructions to the jury to disregard the coindictee's statement was sufficient to prevent the testimony from having any prejudicial impact; it was highly improbable that the coindictee's remarks influenced the outcome of the case, in view of the strong weight of the evidence against the defendant. Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (2011).

Admission of statement given after waiver of right to counsel.

- Trial court did not err by admitting the defendant's custodial statement to a police detective because after the defendant invoked the right to counsel, the detective ceased the interrogation and was returning the defendant to jail when the defendant told the detective that the defendant would tell the detective what the detective wanted to know and then gave an incriminating statement upon returning to the room where the interrogation was conducted. Anthony v. State, 315 Ga. App. 701, 727 S.E.2d 528 (2012).

Unredacted recording of phone conversation should have been admitted.

- Trial court erred in denying the defendant's motion for new trial because the court committed harmful error when the court prevented the defendant from playing to the jury an unredacted recording of a phone conversation between a witness and a friend; the witness was essentially acting as an informant, or at least an agent of police investigators, at the time of the phone conversation, and thus, the witness's recorded statements were admissible as original evidence pursuant to former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801). Redinburg v. State, 315 Ga. App. 413, 727 S.E.2d 201 (2012).

Motion for new trial properly denied.

- Because the police officers saw a vehicle matching a dispatcher's description shortly after receiving the dispatch, and the vehicle attempted to elude the officers, in violation of O.C.G.A. § 40-6-395(a), the officers had a specific and articulable reason to stop the vehicle; consequently, the trial court properly denied the defendant's motions to suppress, in limine, and for a new trial. Francis v. State, 275 Ga. App. 164, 620 S.E.2d 431 (2005).

Trial court did not err by denying the defendant's motion for a mistrial after the jurors watched a portion of the defendant's videotaped statement, which the jurors were not supposed to view, because the jurors clearly indicated that the jurors could and would follow the trial court's curative instruction. Alatise v. State, 291 Ga. 428, 728 S.E.2d 592 (2012).

Cited in Campbell v. State, 155 Ga. 127, 116 S.E. 807 (1923); Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936), aff'd, 184 Ga. 203, 190 S.E. 582 (1937); Harper v. Perry, 190 Ga. 233, 9 S.E.2d 160 (1940); Miller v. State, 69 Ga. App. 847, 26 S.E.2d 851 (1943); Edmonds v. State, 201 Ga. 108, 39 S.E.2d 24 (1946); Ludwig v. J.J. Newberry Co., 78 Ga. App. 871, 52 S.E.2d 485 (1949); Hamel v. Elliott, 79 Ga. App. 633, 54 S.E.2d 688 (1949); McBerry v. Ivie, 116 Ga. App. 808, 159 S.E.2d 108 (1967); Fendley v. Weaver, 121 Ga. App. 526, 174 S.E.2d 369 (1970); Rowell v. State, 122 Ga. App. 568, 177 S.E.2d 812 (1970); Johnson v. Ervin, 236 Ga. 605, 225 S.E.2d 21 (1976); Stillman v. Tempo Carpets, Inc., 174 Ga. App. 66, 329 S.E.2d 197 (1985); Odom v. Dekle, 178 Ga. App. 788, 344 S.E.2d 675 (1986); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); Payne v. Joyner, 197 Ga. App. 527, 399 S.E.2d 83 (1990).

Admission Over Objection

1. In General

When material and illegal evidence is improperly admitted, a new trial will be granted. Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942).

When erroneously admitted evidence is harmful, the admission is ground for a new trial. Owens v. State, 118 Ga. 753, 45 S.E. 598 (1903).

Harmless error in admission of evidence not ground for new trial.

- Objection may not be waived as to introduction of evidence on same subject matter through cross-examination or otherwise; nevertheless, a new trial will not be granted for harmless error in the admission of evidence. Eiberger v. Martel Elec. Sales, Inc., 125 Ga. App. 253, 187 S.E.2d 327 (1972).

While it was error for a trial court to rule that a prior inconsistent statement needed to be authenticated before statement could be used for impeachment, that error was harmless due to the overwhelming evidence of defendant's guilt; defendant was properly denied a new trial on defendant's conviction for aggravated child molestation. Also, while it was error to exclude a prior inconsistent statement by another witness, the fact that the defendant was able to vigorously examine the witness on the statement and the fact that the contents of the statement were made known to the jury rendered that error harmless. Robinson v. State, 265 Ga. App. 481, 594 S.E.2d 696 (2004).

While the trial court erred by denying the defendant's motion in limine, by overruling defendant's objection on hearsay grounds, and by overruling defense counsel's objections to the prosecution's improper character evidence, it was highly probable that the errors did not contribute to the judgment convicting the defendant of trafficking in cocaine; therefore, the defendant was not entitled to a new trial. Williams v. State, 312 Ga. App. 693, 719 S.E.2d 501 (2011).

Trial court did not err in refusing to grant a mistrial on the ground that an eyewitness's testimony was based on hearsay because to the extent the testimony exposed prior difficulties between the codefendants and the victim, it was cumulative of other testimony that the defendant and the codefendant threatened the victim the day before the shooting; the other evidence implicating the defendant in the shooting made it highly probable that the hearsay testimony did not contribute to the verdict. Mathis v. State, 291 Ga. 268, 728 S.E.2d 661 (2012).

Admission of immaterial evidence not reversible error.

- It is not reversible error to admit evidence that is merely irrelevant and immaterial. Mickle v. Moore, 188 Ga. 444, 4 S.E.2d 217 (1939); McDaniel v. State, 197 Ga. 757, 30 S.E.2d 612 (1944).

Admission of irrelevant testimony will not furnish ground for new trial unless the admission injuriously affected the party making the complaint. Turbaville v. State, 58 Ga. 545 (1877).

Admission of immaterial evidence without harmful effect is not a good ground for new trial. Cherry v. McCutchen, 68 Ga. App. 682, 23 S.E.2d 587 (1942).

Rejection of testimony, admissible or inadmissible, which has no probative value whatever, or admitting legal testimony which is wholly immaterial, is not sufficient cause for granting a new trial. Because testimony has been inadvertently admitted, which is wholly immaterial, and which it is apparent could have helped neither party, a new trial will hardly be awarded in an important case. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887).

Admission of irrelevant testimony, not affecting verdict, will not require new trial. Purser v. McNair, 153 Ga. 405, 112 S.E. 648 (1922).

Corrective instructions to rule out illegal testimony.

- Ordinarily, when illegal testimony is placed in evidence, it is not an abuse of discretion to refuse to grant a mistrial if sufficient corrective instructions are given in ruling out the testimony. This is true even if the illegal testimony has the effect of placing the defendant's character in issue, especially when the testimony is volunteered by the witness and not directly elicited by the solicitor. Witt v. State, 157 Ga. App. 564, 278 S.E.2d 145 (1981); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987).

Erroneous admission of evidence over objection not reversible error.

- When certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, admission of evidence objected to will not constitute reversible error, even if admission of evidence was erroneous. Louisville & N.R.R. v. McCamy, 72 Ga. App. 769, 35 S.E.2d 206 (1945).

Erroneous admission of evidence over objection not reversible error when similar evidence is admitted without objection. Davis v. Fulton Nat'l Bank, 77 Ga. App. 400, 48 S.E.2d 773 (1948).

Testimony, even though illegally admitted over proper objection, will not constitute reversible error when substantially the same testimony is later introduced without objection. Johnson v. State, 84 Ga. App. 745, 67 S.E.2d 246 (1951).

When jury considers evidence on same subject matter, admitted without objection, it is not harmful error to allow the same evidence again admitted, over objections, since the admission would probably not change the result. Eiberger v. Martel Elec. Sales, Inc., 125 Ga. App. 253, 187 S.E.2d 327 (1972).

Effect of ruling out illegally admitted evidence.

- As a general rule, error in admitting illegal evidence is cured by subsequently ruling the evidence out. This rule, however, is subject to exception; for when illegal evidence may have worked such harm or injury to accused as to render it probable that the subsequent withdrawal of the evidence will not heal the injury inflicted by the improper admission, error is sufficient ground for grant of a new trial. Thompson v. State, 12 Ga. App. 201, 76 S.E. 1072 (1913), see McDonald v. State, 72 Ga. 55 (1883).

2. Application

Erroneously admitted evidence, calculated to harm defendant.

- When it cannot be said that erroneously admitted evidence was not calculated to harm the defendant and prejudice the defendant's cause, the admission is ground for new trial. Brown v. State, 119 Ga. 572, 46 S.E. 833 (1904); Johnson v. State, 128 Ga. 71, 57 S.E. 84 (1907).

When illegal evidence impeaching credibility of party was admitted, a new trial was justified. Jenkins v. Lane, 154 Ga. 454, 115 S.E. 126 (1922).

When opinion of plaintiff that the plaintiff was damaged was admitted, new trial was justified. Central R.R. & Banking Co. v. Kelly, 58 Ga. 107 (1877).

Admission of expressions tending to mitigate rather than establish guilt, not ground for new trial. Pines v. State, 21 Ga. 227 (1857).

Admission of record of divorce between accused and deceased was not ground for new trial. Lucas v. State, 146 Ga. 315, 91 S.E. 72 (1916).

Admission of evidence in chief after state and defendant have closed is within court's discretion. Cooper v. State, 103 Ga. 63, 29 S.E. 439 (1897).

Admission of some hearsay or opinion evidence at interlocutory hearing.

- Rules of evidence are not in all respects as rigidly enforced on interlocutory hearings as on final trials and admission of some hearsay or opinion evidence, will not necessarily require reversal. Griffith v. City of Hapeville, 182 Ga. 333, 185 S.E. 522 (1936).

Inadvertent reference to insurance in personal injury action did not warrant new trial.

- Because the trial judge took the appropriate curative steps in denying an opposing driver's motions for both a mistrial and a new trial after the suing driver made an inadvertent reference to insurance, including rebuking the suing driver and issuing a curative instruction, the court did not abuse the court's discretion in denying the opposing driver's motions; moreover, the appeals court could not conclude that the opposing driver suffered any wrong or oppression as a result of the trial court's orders. Defusco v. Free, 287 Ga. App. 313, 651 S.E.2d 458 (2007).

Previously withheld exculpatory information.

- If exculpatory information is withheld from a defendant prior to trial (after a proper motion to release all such evidence), but is later introduced at trial by the state, the defendant is not entitled to a mistrial unless the defendant shows that the defendant's defense was thereby prejudiced and that the defendant was denied a fair trial. Edwards v. State, 176 Ga. App. 369, 337 S.E.2d 27 (1985).

False evidence allegation did not warrant new trial.

- Although the defendant contended that along with the revocation of defendant's codefendant's plea deal after the codefendant made statements in contradiction of the plea hearing testimony and defendant's assertion that the defendant refused to give false testimony to the prosecutor in exchange for a plea deal, proved that the prosecutor knowingly allowed false evidence to be presented to the jury in violation of due process, the trial court did not err when the court did not credit the motion for new trial testimony; since the defendant's codefendant was not privy to what occurred in the house after the codefendant ran out and the defendant did not present any evidence at trial that the defendant's codefendant's testimony was false, the revocation of the codefendant's plea deal was inapposite as was defendant's rejection of the plea deal offer. Therefore, the trial court did not err in finding there was no misconduct warranting a new trial pursuant to O.C.G.A. § 5-5-22. Cooper v. State, 287 Ga. 861, 700 S.E.2d 593 (2010), overruled on other grounds, Smith v. State, 290 Ga. 768, 723 S.E.2d 915 (2012).

Expert testimony.

- Trial court erred in admitting, over objection, the testimony of the parents' expert witness about the standard of care in the day-care industry regarding the handling of infants in a case when the infant of the parents died at a hospital after being found pale at the infant's day-care center; the correct standard was that of the average parent, the jury did not need expert testimony to understand or apply that standard of care, and the expert's testimony confused the jury. Accordingly, the child-day care center was granted a new trial because the error in admitting the expert testimony was not harmless. Applebrook Country Dayschool, Inc. v. Thurman, 264 Ga. App. 591, 591 S.E.2d 406 (2003).

Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial after one of the state's expert witnesses testified about a medical examination the expert made of the victim that was not reflected in the records the state produced before trial because the doctors who examined the victim shortly after the victim had been injured testified to finding cell death in portions of the victim's brain, resulting in irreversible brain damage; the expert's testimony that the later examination also indicated a permanent brain injury was cumulative of the other medical evidence. Eskew v. State, 309 Ga. App. 44, 709 S.E.2d 893 (2011).

Testimony regarding codefendant's statement.

- Trial court did not err in denying the defendant's motion for mistrial because the defendant did not show any harm resulting from the investigating police officers' testimony regarding the codefendant's statement, which referenced an "individual" with the codefendant on the night of the robbery who could be considered references to a person whom the jury could infer to be the defendant; the evidence against the defendant was overwhelming. Anderson v. State, 311 Ga. App. 732, 716 S.E.2d 813 (2011).

Interview notes not produced.

- Assuming that notes of an interview that was suppressed by the state were evidence favorable to the defendant, the defendant failed to show either that the notes were not available to the defendant through reasonable diligence, or that the course of the defendant's trial would have been any different had the notes been produced. Thus, there was no error in the trial court's denial of the defendant's motion for a new trial based upon a Brady violation. Freeman v. State, 284 Ga. 830, 672 S.E.2d 644 (2009).

Evidence of arrest on another charge admissible.

- Defendant was not denied a fair trial when the jury was allowed to hear evidence of an unrelated arrest because the circumstances of the defendant's arrest for obstruction of, and giving false information to, an officer were admissible as evidence of flight. Durham v. State, 309 Ga. App. 444, 710 S.E.2d 644 (2011).

Remedial charge sufficient to remedy error.

- Trial court did not err in denying the defendant's motion for mistrial because a remedial charge, which repeatedly admonished the jury that an accomplice's guilty plea was not to be considered in any way with respect to the defendant's guilt, was sufficient to remedy the error of the admission of the plea and render a mistrial unnecessary. Robinson v. State, 312 Ga. App. 110, 717 S.E.2d 694 (2011).

Trial court did not abuse the court's discretion in refusing to grant a mistrial after the state elicited hearsay testimony because the trial court took sufficient precautions to exclude the inadmissible evidence from the jury's consideration as evidence. Sanders v. State, 290 Ga. 445, 721 S.E.2d 834 (2012).

Harmful Brady violation.

- Trial court erred in denying the defendant's motion for new trial because the state committed a harmful Brady violation when the state failed to turn over to the defense a written statement that the victim gave to police; the victim's impeachable omission was not known to the defense before or during trial, and the victim's statement was material to the defense since had the statement been disclosed, the outcome of the case could have been different. Jackson v. State, 309 Ga. App. 796, 714 S.E.2d 584 (2011).

Erroneous Exclusion of Evidence

Necessary showing for exclusion of testimony to be considered ground for new trial.

- For exclusion of oral testimony to be considered as ground for new trial, it must appear that pertinent question was asked, and that court ruled out answer and that a statement was made to court at time showing what answer would be; and that such testimony was material, and would have benefited complaining party. Ellison v. State, 21 Ga. App. 259, 94 S.E. 253 (1917).

Rejecting evidence tending to sustain defense.

- When rejected evidence relates to main transaction and tends to sustain defense set up by the defendant, rejection of such evidence requires grant of a new trial. Green v. State, 154 Ga. 117, 113 S.E. 536 (1922).

Rejection of evidence partly admissible and partly inadmissible.

- When evidence, some of which is admissible, and some of which is not admissible, is offered as a whole, a new trial will not be granted because of the evidence's rejection. Arnold v. State, 131 Ga. 494, 62 S.E. 806 (1908).

Erroneous exclusion when record contains similar evidence establishing same fact.

- When certain evidence is excluded over objection, but record contains similar evidence establishing fact which it is sought to establish by evidence which has been excluded, such exclusion will not constitute reversible error, even if exclusion was erroneous. Louisville & N.R.R. v. McCamy, 72 Ga. App. 769, 35 S.E.2d 206 (1945).

No bad faith in failing to turn over videotaped statements.

- Defendant's new trial motion under O.C.G.A. § 5-5-22 was properly denied, as the fact that the state failed to turn over two videotaped statements from defendant's sons, arising from criminal charges due to a domestic dispute, was based on inadvertance rather than bad faith, there was unimpeached eyewitness testimony from other witnesses that was sufficient to support defendant's convictions pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and there was no showing that the defendant suffered the kind of prejudice that undermined confidence in the outcome of the trial; accordingly, defendant's Brady rights were not violated and there was no violation of O.C.G.A. §§ 17-16-6 and17-16-7. Ely v. State, 275 Ga. App. 708, 621 S.E.2d 811 (2005).

Objection

Admission of illegal evidence without objection.

- It is not ground for new trial that illegal evidence was admitted when no objection was made to the introduction when offered, nor at any time anterior to rendition of the verdict. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861).

When counsel for defendant expressly consents to admission of evidence, the admission will not thereafter serve as ground for new trial. Williams v. State, 119 Ga. 425, 46 S.E. 626 (1904).

When no objection is made to illegal evidence on trial of case the admission is not ground for a new trial. Weldon v. State, 78 Ga. App. 530, 51 S.E.2d 605 (1949).

When evidence is illegally admitted, a new trial may be granted, yet the general rule is that a specific ground of objection must be made at the time the evidence is offered. Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972).

Failure to make objection to admission of illegal evidence will be treated as a waiver and will prevent court, on motion for new trial from inquiring as to competency of such evidence. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914); Boggs v. Griffeth Bros. Tire Co., 125 Ga. App. 304, 187 S.E.2d 915 (1972).

Defendant's claim that defendant's character was improperly placed into evidence when an officer testified that the officer found defendant's prison identification card in defendant's pocket was waived as defendant failed to make a further objection or renew defendant's motion for a mistrial after a curative instruction was given. McCullough v. State, 268 Ga. App. 445, 602 S.E.2d 181 (2004).

Objection to evidence must specify ground upon which objection is based.

- When objection to evidence does not state ground upon which the objection is based, error cannot be assigned upon overruling thereof; the ground must be specific, and must point out wherein and how admission of evidence would violate some recognized rule of the law of evidence. Cooksey v. State, 149 Ga. App. 572, 254 S.E.2d 892 (1979).

In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed. Eiberger v. West, 165 Ga. App. 559, 301 S.E.2d 914 (1983).

Objection merely that evidence is inadmissible is equivalent to no objection.

- Objection to admission of evidence upon ground merely that the evidence is inadmissible is equivalent to assigning no reason at all for the evidence's exclusion. McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917).

Objection necessary although judge previously promises to exclude testimony if connection with crime not established.

- When trial judge promises that certain testimony which counsel for accused moves to exclude, on ground that the testimony does not connect the accused with the crime for which the accused is being tried, will be excluded unless such connection is shown, failure to make any subsequent motion to exclude the testimony can be treated by the court as a waiver of the objection, and failure to exclude the testimony is not cause for a new trial. Quinn v. State, 22 Ga. App. 632, 97 S.E. 84 (1918).

One cannot urge admission of evidence over objection of opposite party as ground for new trial.

- After verdict it is too late for party who upon trial made no objection to testimony which was inadmissible or of no probative value, to urge for first time, as reason why new trial should be granted that party, failure of the judge to exclude such testimony upon motion of opposite party. That party's failure to object upon the party's own part, or to join in objection of the party's opponent will be construed as a waiver of all objection to it, and as a tacit admission that the party considered the testimony beneficial to that party's cause. Wright v. State, 6 Ga. App. 770, 65 S.E. 806 (1909).

When part of evidence is admissible, objection to that part as a whole may be overruled. Dye v. State, 77 Ga. App. 517, 48 S.E.2d 742 (1948).

Obligation to point out objectionable portion of evidence.

- While superior courts may grant new trials when objection is made to specified evidence as a whole, part of which is admissible and part inadmissible, and objection does not point out objectionable portion, there is no error in admitting entire evidence. Jones v. Blackburn, 75 Ga. App. 791, 44 S.E.2d 555 (1947).

Content of Motion

Motion for new trial must state nature of objection or objections made to admission of illegal evidence. Licett v. State, 23 Ga. 57 (1857); Evans v. State, 33 Ga. 1 (1861); Reilly v. State, 82 Ga. 568, 9 S.E. 332 (1889); Brown v. State, 105 Ga. 640, 31 S.E. 557 (1898); Sable v. State, 14 Ga. App. 816, 82 S.E. 379 (1914).

Ground of motion for new trial should be complete within itself. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939).

When motion does not clearly show admission of illegal evidence, new trial will be denied. Anderson v. State, 122 Ga. 161, 50 S.E. 46 (1905).

Must show that objection was made at time of exclusion complained of.

- Ground of motion for new trial, not indicating that evidence was illegally withheld from jury against demand of applicant, does not contain a sufficient assignment of error. Ponder v. Walker, 107 Ga. 753, 33 S.E. 690 (1899).

Ground of motion for new trial based upon admission of evidence should state objection made to evidence, and that such objection was urged at time evidence was offered; otherwise no question is raised for determination. Adkins v. State, 137 Ga. 81, 72 S.E. 897 (1911); McDonald v. State, 21 Ga. App. 125, 94 S.E. 262 (1917).

Supreme Court will not pass upon question of admissibility of evidence when ground in motion for new trial fails to show that objections for exclusion of evidence were urged before trial judge when evidence was offered. Davis v. Buie, 197 Ga. 835, 30 S.E.2d 861 (1944).

It is insufficient to show that ground of objection existed at time of making of motion. Andrews v. State, 118 Ga. 1, 43 S.E. 852 (1903); Richardson v. State, 141 Ga. 782, 82 S.E. 134 (1914).

Objection urged in motion for new trial must be same as objection made during trial. Cooner v. State, 16 Ga. App. 539, 85 S.E. 688 (1915).

Materiality of excluded evidence and object for which the evidence was offered must appear in motion for new trial. Weeks v. State, 79 Ga. 36, 3 S.E. 323 (1887).

Plaintiff in error must show that the plaintiff was harmed and prejudiced by ruling complained of.

- In order for court to grant new trial because of alleged error in introduction of evidence, upon direct exception to this court, it is incumbent upon plaintiff in error to show affirmatively in bill of exceptions, that the plaintiff was harmed and prejudiced by such ruling; and when there is no brief of evidence before this court, and it is not made to appear from bill of exceptions but that there was other evidence before the jury upon same subject, the plaintiff in error fails to show error requiring grant of a new trial in erroneous introduction of such evidence. McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535 (1935), rev'd on other grounds, 182 Ga. 252, 185 S.E. 246 (1936).

Evidentiary basis for motion under section must be set out.

- When evidence is not literally or in substance set out in motion for new trial, nor is the evidence attached as an exhibit, the motion is insufficient. Jackson v. State, 93 Ga. 190, 18 S.E. 401 (1893); Norred v. State, 127 Ga. 347, 56 S.E. 464 (1907); Garvin v. State, 76 Ga. App. 684, 47 S.E.2d 192 (1948).

Assignment of error upon admission of evidence will not be considered when evidence alleged to have been illegally admitted is not set forth literally, or the substance clearly stated, in motion for new trial and objection thereto. Pearson v. Brown, 105 Ga. 802, 31 S.E. 746 (1898); Hicks v. Mather, 107 Ga. 77, 32 S.E. 901 (1899); Georgia N. Ry. v. Hutchins & Jenkins, 119 Ga. 504, 46 S.E. 659 (1904); Hicks v. Webb, 127 Ga. 170, 56 S.E. 307 (1906); Smith v. Savannah Elec. Co., 25 Ga. App. 59, 102 S.E. 548 (1924).

Complaint in ground of motion for new trial of ruling admitting or excluding as evidence a paper, which does not set forth the paper literally or in substance in the ground itself or as an exhibit thereto properly identified, is insufficient to present any question for decision by the Supreme Court on a bill of exceptions assigning error on a judgment refusing a new trial. Williamson v. Prather, 188 Ga. 545, 4 S.E.2d 140 (1939).

Motion must state name of witness whose testimony is complained of.

- Ground of motion for new trial which complains of admission of specified testimony must state name of witness whose testimony is complained of. Adams v. State, 22 Ga. App. 252, 95 S.E. 877 (1918).

Motion must show court was advised what answer of witness, whose testimony was excluded, would be.

- Ground of motion for new trial, which assigns error because court excluded certain testimony of a witness, will not be considered, when movant has failed to show that court was advised as to what answer of witness would be. Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934), appeal dismissed, 295 U.S. 441, 55 S. Ct. 794, 79 L. Ed. 1530 (1935).

Motion claiming testimony lacked proper foundation, which fails to disclose preliminary testimony.

- Ground for motion for new trial which complains of admission of testimony as to contradictory statements made by witness without sufficient foundation being laid therefor, but which does not disclose what preliminary testimony, in way of laying foundation, was produced, is incomplete. Miliken v. State, 8 Ga. App. 478, 69 S.E. 915 (1910).

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, §§ 234, 235, 345.

C.J.S.

- 23 C.J.S., Criminal Law, §§ 1948, 1949. 66 C.J.S., New Trial, § 63 et seq.

ALR.

- Statement by prosecuting attorney in presence of jury implying that defendant had made incriminating statements to him not in evidence, as ground of reversal or new trial, 52 A.L.R. 1022.

Instruction or evidence as to conspiracy where there is no charge of conspiracy in indictment or information, 66 A.L.R. 1311.

Reception of incompetent evidence in criminal case tried to court without jury as ground of reversal, 116 A.L.R. 558.

Statements, comments, or conduct of court or counsel regarding perjury, as ground for new trial or reversal in civil action or criminal prosecution other than for perjury, 127 A.L.R. 1385.

Statements by a witness after criminal trial tending to show that his testimony was perjured, as ground for new trial, 158 A.L.R. 1062.

Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification, 28 A.L.R.2d 972.

Prejudicial effect of argument or remark that adversary was attempting to suppress facts, 29 A.L.R.2d 996.

Prejudicial effect of admission, in personal injury action, of evidence as to financial or domestic circumstances of plaintiff, 59 A.L.R.2d 371.

Admissibility, in prosecution for assault or similar offense involving physical violence, of extent or effect of victim's injuries, 87 A.L.R.2d 926.

Propriety and prejudicial effect of prosecutor's remarks as to victim's age, family circumstances, or the like, 50 A.L.R.3d 8.

Prosecutor's reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 A.L.R.4th 810.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.

5-5-23. Newly discovered evidence.

A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

(Ga. L. 1853-54, p. 46, § 1; Code 1863, § 3640; Code 1868, § 3665; Code 1873, § 3716; Code 1882, § 3716; Civil Code 1895, §§ 5480, 5481; Penal Code 1895, § 1061; Civil Code 1910, §§ 6085, 6086; Penal Code 1910, § 1088; Code 1933, § 70-204.)

Cross references.

- Extraordinary motions for new trial, § 5-5-41.

JUDICIAL DECISIONS

General Consideration

Former Civil Code 1910, § 6086 (see O.C.G.A. § 5-5-23) permitted new trial as to evidence brought in within time specified by former Civil Code 1910, § 6089 (see O.C.G.A. § 5-5-40). Jackson v. Williams, 149 Ga. 505, 101 S.E. 116 (1919).

New trial granted based on error in jury charge.

- In a condemnation action, the lessee was entitled to a new trial because the trial court erred in the court's charge to the jury regarding lost profits; the jury instructions misstated the law and, when considered in the context of the charge as a whole, rendered the charge confusing, contradictory, and unreconcilable. Action Sound, Inc. v. DOT, 265 Ga. App. 616, 594 S.E.2d 773 (2004).

Trial court erred in denying new trial.

- Trial court erred in not granting beauty pageant operators' motions for judgment notwithstanding the verdict, directed verdict, or a new trial, pursuant to O.C.G.A. §§ 5-5-23 and9-11-56, in an action by a beauty pageant contestant who was banned from the contest after it was rumored that the contestant was "stuffing" the ballot boxes, as the contestant failed to establish the contestant's claim for tortious interference with business relations because the contestant did not offer direct evidence of the operators' actions to the contestant's alleged loss of work and earnings following the pageant, nor could the operators be held liable for tortious interference with the contestant's relationships with others, as the contestants were not strangers to those relationships; it was similarly error to deny the motions with respect to the contestant's slander claim, as the contestant failed to show that an employee was directly ordered to make the statements by the employer, there was no respondeat superior liability in slander cases, and the statements between the contest's joint venturers were privileged as intra-corporate communications and accordingly, publication was also not shown. Galardi v. Steele-Inman, 266 Ga. App. 515, 597 S.E.2d 571 (2004).

Policy of law to end litigation must yield to supreme object of achieving full justice.

- Despite often-stated policy of law to end litigation, for which reason courts ordinarily look with disfavor upon grants of new trial upon newly discovered evidence, this policy of law must and does yield to higher and supreme object of law which is to do full justice in all cases. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Requirements for grant of new trial based on newly discovered evidence.

- To obtain a new trial on the basis of newly discovered evidence, a movant must satisfy the court: (1) that the evidence has come to the movant's knowledge since the trial; (2) that it was not owing to the want of due diligence that the movant did not acquire the evidence sooner; (3) that the evidence is so material that it would probably produce a different verdict; (4) that the evidence is not cumulative only; (5) that the affidavit of the witness is attached to the motion or the affidavit's absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Young v. State, 194 Ga. App. 335, 390 S.E.2d 305 (1990); Eliopulos v. State, 203 Ga. App. 262, 416 S.E.2d 745, cert. denied, 203 Ga. App. 906, 416 S.E.2d 745 (1992).

Requirements for grant of new trial based on newly discovered evidence are: (1) that evidence has come to knowledge of moving party since trial; (2) that it was not owing to want of due diligence that moving party did not acquire the evidence sooner; (3) that the evidence was so material that it would probably produce a different verdict; and (4) that it is not cumulative only. Turner v. State, 139 Ga. App. 503, 229 S.E.2d 23 (1976); Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981); Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

It is incumbent on party who asks for new trial on ground of newly discovered evidence to satisfy court: (1) that evidence has come to the party's knowledge since trial; (2) that it was not owing to want of due diligence that the party did not acquire it sooner; (3) that the evidence is so material that it would probably produce a different verdict; (4) that the evidence is not cumulative only; (5) that affidavit of witness should be procured or the affidavit's absence accounted for; and (6) that new trial will not be granted if only effect of evidence will be to impeach credit of witness. Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976); Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980); Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981); Alexander v. State, 186 Ga. App. 787, 368 S.E.2d 550 (1988); Lawrence v. State, 227 Ga. App. 70, 487 S.E.2d 608 (1997).

In motion for new trial made upon alleged newly discovered evidence, when it appears that latter is purely cumulative, and it does not appear that with additional evidence a verdict different from that already rendered would probably result, and when it further appears that the defendant and defense counsel could, by exercise of slightest diligence, have discovered such evidence before or at time of trial, this court will not hold that trial judge abused the judge's discretion in overruling motion. Stargel v. State, 52 Ga. App. 74, 182 S.E. 406 (1935).

To obtain a new trial on the basis of newly discovered evidence, the evidence supporting the motion must be admissible, and must also satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not cumulative only; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. Collins v. Kiah, 218 Ga. App. 484, 462 S.E.2d 158 (1995).

Post-trial declaration.

- Law is settled that a post-trial declaration by a state's witness that the witness's former testimony was false is not a ground for a new trial. Brown v. State, 209 Ga. App. 314, 433 S.E.2d 321 (1993).

Movant bears burden of showing meeting of standards for granting new trial. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Although a codefendant who testified against the defendant at defendant's criminal trial indicated that a certain sentence was recommended by the prosecutor's office, and thereafter, a much more lenient sentence was actually imposed on that codefendant, the defendant failed to show that the state committed a Brady violation by not disclosing the more favorable deal that the state made with the testifying codefendant as the prosecutor testified that the codefendant had testified accurately as to the sentence recommendation, but that the sheriff's office had sought a more lenient sentence for the defendant, which was in fact imposed; accordingly, the defendant's new trial motion was properly denied and the convictions were properly affirmed. Ford v. State, 273 Ga. App. 290, 614 S.E.2d 907 (2005).

When all requirements are met, grant of new trial is mandatory.

- While section states that new trial may be granted, in proper case, when all rules of law have been met, new trial must be granted. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Failure to show one requirement is sufficient to deny motion for new trial. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

All six requirements must be complied with to secure a new trial. Westbrook v. State, 186 Ga. App. 493, 368 S.E.2d 131, cert. denied, 186 Ga. App. 919, 368 S.E.2d 131 (1988).

Effect of noncompliance with section's requirements.

- When requirements of section are not complied with, it is not error to overrule ground of motion for new trial based upon evidence alleged to be newly discovered, which might produce a different result should a new trial be granted. Blackwell v. Houston County, 168 Ga. 248, 147 S.E. 574 (1929).

Grants of new trials on ground of newly discovered evidence are not favored by courts. McDuffie v. State, 2 Ga. App. 401, 58 S.E. 544 (1907); Staton v. State, 174 Ga. 719, 163 S.E. 901 (1932); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951); Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980).

Motions for new trials based upon newly discovered evidence are not favored. Norman v. Goode, 121 Ga. 449, 49 S.E. 268 (1904); Harris v. State, 149 Ga. 724, 102 S.E. 159 (1920); Reed Oil Co. v. Harrison, 26 Ga. App. 37, 105 S.E. 496 (1920); Hart v. State, 207 Ga. 599, 63 S.E.2d 390 (1951); James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Great caution should be exercised in granting new trial on ground of newly discovered evidence. Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951).

When severance not mandatory, denial of new trial not error.

- When defendant's trial counsel did not move to sever defendant's two aggravated assault charges, which were similar in fact pattern and would have presumably been admitted in the trial of the other, it was found that severance was not mandatory and the defendant did not show prejudice as a result of the decision to not so move. The trial court did not err in denying the defendant's motion for new trial on the ground that the defendant's trial attorney rendered ineffective assistance by failing to seek severance of the charges. Collier v. State, 266 Ga. App. 345, 596 S.E.2d 795 (2004).

Reasons that new trials under section are not favored.

- Generally, granting of new trials on newly discovered evidence is not favored, because it tends to discourage diligence and encourage lack of diligence by litigants and their counsel on the first trial, causes delay in administering of justice, and loss of time, labor, and expense of another trial. Turner v. State, 44 Ga. App. 348, 161 S.E. 626 (1931).

Motions for new trial are not intended to serve purpose of cross-examination. Greer & Co. v. Raney, 120 Ga. 290, 47 S.E. 939 (1904); Bullington v. Chandler, 110 Ga. App. 803, 140 S.E.2d 59 (1964).

Discretion of judge.

- Motion must be addressed to the sound legal discretion of court, and the court alone must be trier of weight and credibility of testimony. Morgan v. State, 16 Ga. App. 559, 85 S.E. 827 (1915).

Motions for new trial under section are addressed to the sound discretion of the judge. Aycock v. State, 188 Ga. 550, 4 S.E.2d 221 (1939); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980); Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Grant or denial of motion for new trial based on newly discovered evidence is largely discretionary with trial judge. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Applications for new trial are in large part addressed to the sound discretion of the trial judge. Allanson v. State, 158 Ga. App. 77, 279 S.E.2d 316 (1981).

Motions for new trial on the ground of newly discovered evidence are addressed to the sole discretion of the trial judge, which will not be controlled unless abused. Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

Grant or denial of a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court. The court's ruling will not be disturbed absent an abuse of that discretion. Wilson v. State, 193 Ga. App. 374, 387 S.E.2d 642 (1989).

In a situation in which a juror did not admit during voir dire that the juror knew the victim, but during trial, the juror indicated that the juror was unaware of the victim's name but that the juror knew the victim, but in fact, the victim had worked in the juror's shop years earlier, the trial court did not err in denying the defendant's motion for a new trial, as the juror indicated that the juror would be fair and impartial, the juror had not been dishonest, but merely mistaken, during voir dire, and the trial court was within the court's discretion because a corrected response by the juror during voir dire would not have provided a valid basis for a challenge for cause. Todd v. State, 275 Ga. App. 459, 620 S.E.2d 666 (2005).

New trial should not be granted unless it appears different verdict will result.

- To warrant granting of new trial under section, it must be shown that different result may obtain at second trial. Morris Storage & Transf. Co. v. Wilkes, 1 Ga. App. 751, 58 S.E. 232 (1907); Mayor of Athens v. Peeler, 6 Ga. App. 379, 65 S.E. 45 (1909); Wright v. Wright, 25 Ga. App. 721, 104 S.E. 456 (1920); Oglesbee v. State, 25 Ga. App. 750, 105 S.E. 51 (1920); Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474, 118 S.E. 435 (1923); Alexander v. Allen, 101 Ga. App. 706, 115 S.E.2d 258 (1960).

Courts are not obliged to grant a new trial for newly discovered evidence unless the court's are reasonably convinced that on another trial there will probably be a different verdict. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Unless newly discovered evidence is of such character as upon another trial would likely produce a different result, the judge does not err in overruling the motion for new trial. Cannon v. State, 194 Ga. 277, 21 S.E.2d 689 (1942).

When newly discovered evidence offered in support of motion for new trial was of such character as probably would, if credited by jury, produce a different result upon another investigation, the trial judge erred in overruling the motion. McDaniel v. State, 74 Ga. App. 5, 38 S.E.2d 697 (1946).

On hearing extraordinary motion for new trial, if it is not reasonably apparent to judicial mind that new facts would probably produce a different verdict, new trial should not be ordered. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969).

If it is not reasonably apparent to judicial mind that new facts would probably produce different verdict, new trial should not be ordered. Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Unless it is reasonably apparent from the record that alleged newly discovered evidence will likely produce a different verdict upon another trial, a motion for new trial based upon that ground should not be granted. Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980); Blankenship v. State, 162 Ga. App. 538, 292 S.E.2d 123 (1982).

When it has not been shown that the newly discovered evidence was so material that it would probably produce a different verdict, or that it could not have been discovered during trial by the exercise of reasonable diligence there is no abuse of discretion by the trial court in overruling the defendant's motion for a new trial. Covington v. State, 157 Ga. App. 371, 277 S.E.2d 744 (1981).

Because defense counsel went over the voluntary manslaughter statute with defendant and explained intent to the defendant, the defendant failed to show that counsel was ineffective; because the defendant's plea was freely and voluntarily made, the trial court did not err in denying the defendant's motion for new trial. Howard v. State, 274 Ga. App. 861, 619 S.E.2d 363 (2005).

Standard of review.

- Trial judge's grant of new trial under section will not be disturbed unless it is made to appear that the judge abused the judge's discretion. Exchange Bank v. Cone, 18 Ga. App. 432, 89 S.E. 489 (1916).

Trial judge's ruling on motion under section will not be disturbed absent a manifest abuse of discretion. Aycock v. State, 188 Ga. 550, 4 S.E.2d 221 (1939); Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944); Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945); Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946); James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967); Lord v. State, 156 Ga. App. 492, 274 S.E.2d 641 (1980).

Order of trial judge in refusing to grant new trial on ground of newly discovered evidence will not be disturbed unless it is shown that the judge has abused the judge's discretion. Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Refusal to grant the motion will not be reversed unless the trial judge's discretion is abused. Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Refusal of new trial not disturbed unless it appears new evidence would change result.

- Discretion of trial judge in refusing to grant new trial on ground of newly discovered evidence will not be controlled, unless it plainly appears that evidence alleged to have been newly discovered would probably change result. This rule is peculiarly applicable when alleged newly discovered testimony in criminal case relates to facts which are not vitally material to the issue of defendant's guilt or innocence. Taylor v. State, 13 Ga. App. 689, 79 S.E. 862 (1913).

Ineffective assistance of appellate counsel not shown.

- Defendant failed to meet the defendant's burden in order to show that defendant's counsel rendered ineffective assistance at trial, pursuant to the Strickland standard under U.S. Const., amend. VI, as the failure to request instructions was shown to be a trial strategy, for which no prejudice was shown, and there was no need to object to an instruction which was a correct statement of the law and was supported by the evidence; further, appellate counsel was not shown to be ineffective because no prejudice was shown and certain issues which were not raised in defendant's new trial motion, pursuant to O.C.G.A. § 5-5-23, were procedurally barred from review on appeal. Godfrey v. State, 274 Ga. App. 237, 617 S.E.2d 213 (2005).

Trial court properly denied defendant's motion for a new trial.

- Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on what was alleged to be newly discovered evidence; the appeals court classified the evidence, at best, as newly available, not newly discovered. Kilby v. State, 289 Ga. App. 457, 657 S.E.2d 567 (2008).

Motion properly denied.

- Motion for new trial was properly denied as the trial court did not err in concluding that the defendant failed to carry the defendant's burden of showing ineffective assistance; trial counsel's decision to pursue the coercion defense, O.C.G.A. § 16-3-26, for armed robbery rather than a mistaken identity defense, was clearly a strategic decision based upon the evidence. Lewis v. State, 270 Ga. App. 48, 606 S.E.2d 77 (2004).

Trial court properly denied an injured party's motion for a new trial pursuant to O.C.G.A. § 5-5-23 in a personal injury action; a driver's statements in the answer and pre-trial order were not inconsistent, as both averred that the driver had a green light at the time of the accident, and thus the trial court properly declined to allow cross-examination of the driver as to the pleadings. Lott v. Hatcher, 275 Ga. App. 424, 620 S.E.2d 651 (2005).

Evidence sufficient to support denial of motion.

- Defendant's convictions for robbery, burglary, and false imprisonment, in violation of O.C.G.A. §§ 16-8-40(a),16-7-1(a), and16-5-41(a), respectively, were supported by sufficient evidence because the victim and a codefendant both positively identified the defendant as a participant in a criminal event, wherein three individuals burst into the victim's apartment, robbed the victim at gunpoint, and tied the victim up; the lack of physical evidence did not alter the sufficiency, as the identification testimony from a photographic line-up and at trial was within the trier of fact's credibility determination, and denial of the defendant's new trial motion under O.C.G.A. § 5-5-23 was proper. Tucker v. State, 275 Ga. App. 611, 621 S.E.2d 562 (2005).

Cited in Atlanta Rapid Transit Co. v. Young, 117 Ga. 349, 43 S.E. 861 (1903); Trammell v. Shirley, 38 Ga. App. 710, 145 S.E. 486 (1928); Smith v. State, 170 Ga. 234, 152 S.E. 482 (1930); Booth v. Rickerson, 45 Ga. App. 733, 165 S.E. 893 (1932); Capps v. Toccoa Falls Light & Power Co., 46 Ga. App. 268, 167 S.E. 530 (1933); McDow v. State, 176 Ga. 764, 168 S.E. 869 (1933); Thompson v. Growers' Fin. Corp., 49 Ga. App. 119, 174 S.E. 192 (1934); Gibson v. State, 178 Ga. 707, 174 S.E. 354 (1934); Terry v. State, 49 Ga. App. 343, 175 S.E. 403 (1934); Goodson v. State, 50 Ga. App. 91, 176 S.E. 916 (1934); Booker v. State, 50 Ga. App. 66, 176 S.E. 917 (1934); Jackson Disct. Co. v. Merck, 50 Ga. App. 381, 178 S.E. 208 (1935); Le Counte v. State, 51 Ga. App. 421, 180 S.E. 657 (1935); Wright v. State, 184 Ga. 62, 190 S.E. 663 (1937); Whatley v. Henry, 65 Ga. App. 668, 16 S.E.2d 214 (1941); Mills v. State, 193 Ga. 139, 17 S.E.2d 719 (1941); Parsons v. Georgia Power Co., 67 Ga. App. 517, 21 S.E.2d 257 (1942); Jones v. State, 68 Ga. App. 210, 22 S.E.2d 671 (1942); Landers v. State, 68 Ga. App. 804, 24 S.E.2d 139 (1943); Johnson v. State, 196 Ga. 806, 27 S.E.2d 749 (1943); Buttersworth v. State, 200 Ga. 13, 36 S.E.2d 301 (1945); Brown v. State, 73 Ga. App. 420, 37 S.E.2d 163 (1946); Luce v. Evans, 202 Ga. 48, 41 S.E.2d 878 (1947); Mooney v. Shelfer, 205 Ga. 766, 55 S.E.2d 212 (1949); McCowen v. Aldred, 85 Ga. App. 373, 69 S.E.2d 660 (1952); Randall v. Whitman, 88 Ga. App. 803, 78 S.E.2d 78 (1953); Gibson v. State, 210 Ga. 440, 80 S.E.2d 681 (1954); Fields v. Balkcom, 211 Ga. 797, 89 S.E.2d 189 (1955); Lightfoot v. Applewhite, 212 Ga. 136, 91 S.E.2d 37 (1956); Fortner v. State, 96 Ga. App. 855, 101 S.E.2d 908 (1958); Austin v. State, 121 Ga. App. 244, 173 S.E.2d 452 (1970); Bickford v. Bickford, 228 Ga. 353, 185 S.E.2d 756 (1971); Vinson v. State, 127 Ga. App. 607, 194 S.E.2d 583 (1972); Blair v. State, 230 Ga. 409, 197 S.E.2d 362 (1973); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Downs v. State, 141 Ga. App. 173, 233 S.E.2d 32 (1977); Maddox v. Thomas, 151 Ga. App. 477, 260 S.E.2d 355 (1979); Cartin v. Boles, 155 Ga. App. 248, 270 S.E.2d 799 (1980); Curry v. State, 155 Ga. App. 829, 273 S.E.2d 411 (1980); Austin v. McNeese, 156 Ga. App. 533, 275 S.E.2d 79 (1980); Transport Ins. Co. v. Ferguson, 156 Ga. App. 715, 275 S.E.2d 354 (1980); Fields v. Fields, 247 Ga. 437, 276 S.E.2d 614 (1981); Cody v. State, 160 Ga. App. 86, 286 S.E.2d 321 (1981); Powell v. State, 160 Ga. App. 210, 286 S.E.2d 513 (1981); Drake v. State, 248 Ga. 891, 287 S.E.2d 180 (1982); Willis v. State, 249 Ga. 261, 290 S.E.2d 87 (1982); Payne v. State, 161 Ga. App. 233, 291 S.E.2d 236 (1982); Collier v. State, 169 Ga. App. 69, 311 S.E.2d 242 (1983); Llewellyn v. State, 252 Ga. 426, 314 S.E.2d 227 (1984); Ansell v. State, 172 Ga. App. 89, 321 S.E.2d 819 (1984); Mason v. State, 177 Ga. App. 184, 338 S.E.2d 706 (1985); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); McIntyre v. State, 207 Ga. App. 129, 427 S.E.2d 99 (1993); Betha v. State, 208 Ga. App. 802, 432 S.E.2d 242 (1993); Gardner v. State, 261 Ga. App. 188, 582 S.E.2d 167 (2003); Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003); Dorsey v. State, 261 Ga. App. 181, 582 S.E.2d 158 (2003); Floor Pro Packaging, Inc. v. AICCO, Inc., 308 Ga. App. 586, 708 S.E.2d 547 (2011).

Extraordinary Motions Under Section

Extraordinary motions or cases contemplated by section are such as do not ordinarily occur in transaction of human affairs, as when a man has been convicted of murder, and it afterwards appears that supposed deceased is still alive, or when one is convicted on testimony of witness who is subsequently found guilty of perjury in giving that testimony, or when there has been some providential cause, and cases of like character. Manchester v. State, 175 Ga. 906, 166 S.E. 651 (1932).

Stricter rule is applied to extraordinary motions under section than to ordinary motions. Kryder v. State, 76 Ga. App. 546, 46 S.E.2d 526 (1948).

Strict rules.

- Extraordinary motions for new trials, based solely upon ground of newly discovered evidence, are viewed by courts with even less favor than original motions based on such ground, a stricter rule being applied to the former. Norman v. Goode, 121 Ga. 449, 49 S.E. 268 (1904); Jackson v. State, 50 Ga. App. 243, 177 S.E. 819 (1934).

Extraordinary motions for new trial based on newly discovered evidence are not favored by law. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Extraordinary motion for new trial under section is addressed to sound discretion of trial judge. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Refusal to grant extraordinary motion under section will not be reversed absent abuse of discretion. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Stevens v. State, 119 Ga. App. 102, 166 S.E.2d 413 (1969); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Cannot be based on evidence known or discoverable in permissible time.

- Extraordinary motion for new trial cannot be based upon evidence which was known to the movant or which could have been discovered in time by proper diligence. Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969).

Denial of defendant's extraordinary motion for a new trial based on newly discovered evidence was upheld after the defendant failed to show, inter alia, that the allegedly new evidence came to the defendant's knowledge after trial or that the delay in acquiring the evidence was not the result of lack of due diligence. Alexander v. State, 264 Ga. App. 34, 589 S.E.2d 857 (2003).

Denial of defendant's motion for a new trial after the defendant's conviction for burglary and theft by receiving was not error, as defendant's alleged newly-discovered evidence would have been known prior to trial; the defendant knew of a witness' immediate presence during a conversation regarding stolen goods and, therefore, would have known prior to trial that the witness could have testified to the conversation. Fetter v. State, 271 Ga. App. 652, 610 S.E.2d 615 (2005).

Must contain certified copy of evidence adduced upon trial.

- When accused has been convicted, a new trial denied the accused, and that judgment affirmed, in order for extraordinary motion for new trial on ground of newly discovered evidence to be a valid motion, it must appear that newly discovered evidence is not merely cumulative or impeaching, and that newly discovered evidence would likely produce a different result. As none of these requirements can be determined without an examination of evidence adduced upon original trial of case, an extraordinary motion for new trial that does not contain a certified copy of evidence adduced upon original trial is not a good motion and can be denied upon this ground alone. Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956).

Court may allow oral or parol testimony.

- On hearing of extraordinary motion for new trial, it is not error for court to allow, over objection, oral or parol testimony. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Judge may hear affidavits, though witnesses are present unless objection is made.

- In hearing on extraordinary motion for new trial, when witnesses are present, and do not object, the presiding judge has discretion as to whether the judge will hear affidavits or oral testimony. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

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

- Petitioner, a death row inmate, argued in the petitioner's 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 an otherwise barred constitutional claim considered on the merits; further, the claim was not properly before the federal court, as the petitioner 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).

On hearing of extraordinary motion for new trial, pertinent parts of trial record are admissible.

- It is not error on hearing of extraordinary motion for new trial to admit, over objection, record of evidence taken at main trial bearing upon question to be decided. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Filing of extraordinary motion not affected by notice of appeal.

- While it is elementary that after notice of appeal has been filed to judgment of trial court, judge no longer has jurisdiction to reconsider and change it, this has no bearing on extraordinary motions filed under this section. Brooks v. Williams, 127 Ga. App. 311, 193 S.E.2d 231 (1972).

Trial court did not abuse discretion in granting extraordinary motion for new trial.

- 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).

Exercise of Ordinary Diligence

When record shows that no diligence was exercised, motion under section is not meritorious. Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945).

When a defendant was knowledgeable as to the identity of an eyewitness, yet did not exercise due diligence to locate the witness, no subpoena was issued for this witness to appear at the trial, and there was no attempt made to obtain a continuance of the case so that this witness could be located, the trial court did not err in denying the motion for new trial. Curtiss v. State, 165 Ga. App. 464, 302 S.E.2d 1 (1983).

When movant knew or should have known of evidence, motion is without merit.

- Ground of the motion for new trial based on alleged newly discovered evidence is without merit when it appears from the ground that such evidence must have been, or should have been known to the defendant before trial. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981).

No new trial as to evidence that could have been secured earlier through ordinary diligence.

- Motion for new trial on this ground should not be granted unless it appears that applicant's ignorance of alleged newly discovered evidence at time of trial was not the result of negligence. Williams v. State, 67 Ga. 260 (1881).

New trials based on newly discovered evidence should not be granted unless it appears that testimony alleged to be newly discovered could not have been secured at trial by exercise of ordinary diligence. Copelan v. State, 7 Ga. App. 690, 67 S.E. 833 (1910).

When evidence could have been discovered before trial by exercise of diligence, trial judge does not abuse the judge's discretion in refusing a new trial. Cadwalader v. Fendig, 137 Ga. 140, 72 S.E. 903 (1911); Rothschild & Co. v. Arenson & Co., 22 Ga. App. 337, 96 S.E. 14 (1918); Sovereign Camp of Woodmen of the World v. Winn, 23 Ga. App. 760, 99 S.E. 319 (1919).

Judge is trier of whether or not sufficient diligence has been shown. Matthews v. Grace, 199 Ga. 400, 34 S.E.2d 454 (1945).

Determination of whether diligence exercised was ordinary.

- Whether diligence used was ordinary or less than ordinary must be determined in each case by comparing conduct under consideration with that of ordinary man under similar circumstances. Orr v. State, 5 Ga. App. 76, 62 S.E. 676 (1908).

It is not incumbent upon state to show lack of diligence. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Mere statement that evidence could not have been discovered through ordinary diligence is insufficient.

- Mere general statements by defendant and counsel that they did not know of evidence and could not have discovered the evidence by the exercise of ordinary diligence are insufficient to sustain a motion for new trial on the ground of newly discovered evidence. James v. State, 115 Ga. App. 822, 156 S.E.2d 183 (1967).

Mere assertion that evidence could not have been discovered by ordinary diligence is insufficient. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Mere allegation that the evidence could not have been discovered by ordinary diligence is insufficient to show that the evidence could not have been discovered prior to trial. Jefferson v. State, 157 Ga. App. 324, 277 S.E.2d 317 (1981).

Diligence before trial will not be inferred from diligence after conviction. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Ordinary diligence requires pretrial inspection of place where accident occurred. Cadwalader v. Fendig, 137 Ga. 140, 72 S.E. 903 (1911); Realty Bond & Mtg. Co. v. Harley, 19 Ga. App. 186, 91 S.E. 254 (1917).

Avoidance of juror disqualification by ordinary diligence.

- When a bank deposed a customer, who had filed a slip and fall action against the bank, four years before trial and when asked whether the customer had any relatives who might become jurors, the customer indicated that a spouse had some but the customer did not know their names, it was held that the bank was on notice that further investigation was required in order to avoid the issue of juror disqualification pursuant to O.C.G.A. § 15-12-135(a); accordingly, the denial of the bank's motion for a new trial pursuant to O.C.G.A. § 5-5-23, after the verdict was entered in favor of the customer, was properly denied because the bank could have avoided the issue of juror disqualification by use of ordinary diligence. Furthermore, the damages awarded in favor of the customer were not so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors. Patterson Bank v. Gunter, 263 Ga. App. 424, 588 S.E.2d 270 (2003).

Newly Discovered Evidence

1. In General

Newly discovered evidence must be admissible as evidence to provide basis for new trial. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

When ground of motion for new trial, based on newly discovered evidence, is predicated on certified copies of various documents, and contains much that would not be admissible in event of another trial, it is proper for the trial judge and for the reviewing court, in passing upon the ground, to consider only such portions of alleged newly discovered evidence as would be admissible in the event of a new trial. Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945).

To entitle one convicted of a crime to a new trial on the ground of newly discovered evidence, such evidence must be admissible and must not be merely cumulative. Hornbuckle v. State, 76 Ga. App. 111, 45 S.E.2d 98 (1947).

Evidence itself, rather than witnesses, must be newly discovered.

- Alleged newly discovered evidence is no cause for new trial, unless it shall appear that evidence itself is newly discovered, not merely that certain named witnesses by whom facts can be proved were unknown until after the trial. Watkins v. State, 18 Ga. App. 60, 88 S.E. 1000 (1916); Bass v. State, 154 Ga. 112, 113 S.E. 524 (1922); Manchester v. State, 175 Ga. 906, 166 S.E. 651 (1932).

Newly discovered evidence must be material to issue involved in trial. Oppenheim v. State, 12 Ga. App. 480, 77 S.E. 652 (1913).

Evidence should relate to new material facts, likely to produce different result on second trial.

- It is essential that evidence should be material, relating to new and material facts, and such as will be likely to produce different result on second trial. Goldberg v. State, 16 Ga. App. 691, 85 S.E. 972 (1915).

Defendant's motion for a new trial based on newly discovered evidence was properly denied since the defendant claimed that one of the other people riding in a car with the defendant asked a testifying witness for bullets for a gun, and thereafter, defendant was convicted for various crimes resulting from the shooting, wounding, and deaths of three individuals; this new information was not material and not likely to produce a different result. Ingram v. State, 276 Ga. 223, 576 S.E.2d 855 (2003).

Must relate to new material facts discovered after verdict.

- Newly discovered evidence must also be material in relating to new and material facts discovered by applicant after rendition of verdict against the applicant. Alexander v. Allen, 101 Ga. App. 706, 115 S.E.2d 258 (1960).

Evidence which must have been known before trial ended.

- Motion for new trial on this ground should not be granted unless it appears that evidence was discovered by the applicant after a verdict against the applicant. Collins v. State, 21 Ga. App. 128, 94 S.E. 77 (1917).

Evidence which, in the nature of things, must have been known to the accused before the trial ended cannot after verdict be treated as newly discovered. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941).

Trial court did not abuse the court's discretion by denying the defendant's motion for new trial based upon newly discovered evidence, as the defendant had possession of the claimed new evidence, surveillance photos taken at the scene of an armed robbery, at trial, and counsel used these photos in presenting a defense; further, testimony from a newly discovered witness, whom the defendant claimed would extrapolate meaning from the evidence, was not newly discovered evidence for purposes of granting a new trial. Claritt v. State, 280 Ga. App. 384, 634 S.E.2d 81 (2006).

Evidence which could have been discovered and presented at trial.

- If evidence subsequently relied upon is such that the evidence could have been discovered with ordinary diligence and presented at trial, a motion for new trial should be denied. Dyal v. State, 121 Ga. App. 50, 172 S.E.2d 326 (1970).

Trial court did not err by denying an insurance company's motion for a new trial to consider newly-discovered evidence, pursuant to O.C.G.A. § 5-5-23, because the bankruptcy records which the insurance company wanted the court to consider were available as public records and could have been obtained and introduced during the trial. VFH Captive Ins. Co. v. Cielinski, 260 Ga. App. 807, 581 S.E.2d 335 (2003).

In an action by a builder to recover for breach of contract, the buyers were not entitled to a new trial since the buyers failed to point to authority stating that the perjured testimony was grounds for a new trial in a civil case and failed to show that late discovery was not due to lack of diligence. Hopper v. M & B Builders, Inc., 261 Ga. App. 702, 583 S.E.2d 533 (2003).

Claim that there was newly discovered evidence lacked merit because the evidence was available before trial; the evidence that the defendant's son was allegedly molested by the victim of the defendant's offenses was known to the defendant prior to trial. Lester v. State, 278 Ga. App. 247, 628 S.E.2d 674 (2006).

Affidavit submitted by litigant's counsel purporting to show newly discovered evidence is insufficient to serve as grounds for a new trial. Among other requirements, the affidavit of the witness should be procured or the absence accounted for. Head v. State, 160 Ga. App. 4, 285 S.E.2d 735 (1981).

When appellant did not obtain the witness's affidavit as to newly discovered evidence, nor account for the affidavit's absence, there was no concrete indication as to what the newly discovered evidence would be, if a new trial were had. Thus, the trial court did not err in overruling the motion for new trial. Kuchenmeister v. State, 199 Ga. App. 64, 403 S.E.2d 847, cert. denied, 199 Ga. App. 906, 403 S.E.2d 847 (1991).

No abuse of discretion found.

- Because the "newly discovered evidence" upon which the defendant relied merely tended to impeach the codefendant's trial testimony, the trial court did not abuse the court's discretion in denying the defendant's motion for a new trial; there was no evidence that the codefendant who recanted had been convicted of perjury. Anderson v. State, 276 Ga. App. 216, 622 S.E.2d 898 (2005).

2. Cumulative and Impeaching Evidence

Newly discovered evidence will not authorize new trial when merely cumulative or impeaching in character. See Brantley v. State, 16 Ga. App. 6, 84 S.E. 131 (1915); Aycock v. State, 188 Ga. 550, 4 S.E.2d 221 (1939); Hart v. State, 207 Ga. 599, 63 S.E.2d 390 (1951); Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Hamilton v. State, 119 Ga. App. 196, 166 S.E.2d 735 (1969); O'Neal v. State, 238 Ga. App. 446, 519 S.E.2d 244 (1999), cert. denied, 529 U.S. 1039, 120 S. Ct. 1535, 146 L. Ed. 2d 349 (2000).

Newly discovered evidence that is merely impeaching in nature will not authorize a new trial, even though such evidence may relate to only testimony on some vital point. Johnson v. State, 196 Ga. 806, 27 S.E.2d 749 (1943).

Even when all the requirements of O.C.G.A. § 5-5-23 are met, a new trial is not demanded when the newly discovered evidence is no more than impeaching in character. Cole v. Shoffner, 205 Ga. App. 65, 421 S.E.2d 322 (1992).

Newly discovered evidence which is impeaching only is not basis for granting of new trial. Drane v. State, 130 Ga. 349, 60 S.E. 863 (1908); Bass v. State, 154 Ga. 112, 113 S.E. 524 (1922); Jones v. Knightstown Body Co., 52 Ga. App. 667, 184 S.E. 427 (1936); Williams v. State, 199 Ga. 504, 34 S.E.2d 854 (1945); Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952); Williams v. State, 98 Ga. App. 346, 105 S.E.2d 771 (1958).

Newly discovered evidence which merely impeaches testimony of witnesses for state, and which would not likely produce different result on another trial if admitted, is not sufficient to authorize grant of new trial. Spell v. State, 225 Ga. 705, 171 S.E.2d 285 (1969).

Assuming without deciding that the defendant satisfied the first five requirements of the motion for new trial based on newly discovered evidence test, the post-trial testimony of the defendant's father's brother-in-law did not support the motion for new trial as it would only have had the effect of impeaching the testimony of the victim's brother. Wimberly v. State, 302 Ga. 321, 806 S.E.2d 599 (2017).

Newly discovered evidence merely cumulative in nature is not a sufficient ground for grant of new trial. Walker v. State, 126 Ga. 588, 55 S.E. 483 (1906); Lawhorn v. State, 155 Ga. 373, 116 S.E. 822 (1923); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958); Benefield v. State, 140 Ga. App. 727, 232 S.E.2d 89 (1976).

When newly discovered evidence is strictly cumulative and merely increases weight of evidence, leaving still in doubt a material question at issue, new trial will not be granted. Bragg v. State, 15 Ga. App. 368, 83 S.E. 274 (1914).

New trial will not be granted if the only effect of the newly discovered evidence will be to impeach the credit of a witness. Hutto v. State, 158 Ga. App. 3, 279 S.E.2d 278 (1981).

In a motion for a new trial based on newly discovered evidence, when a newly discovered witness only offered impeaching testimony, it did not constitute newly discovered evidence. Allain v. State, 202 Ga. App. 706, 415 S.E.2d 315 (1992).

After the trial court denied defendant's motion for a new trial under O.C.G.A. § 5-5-23 that was premised upon newly discovered evidence in the form of the testimony of two witnesses that the victim told that the victim had lied at trial, this was insufficient to grant a new trial, as the testimony would have merely impeached the victim's testimony, which was not a sufficient basis to grant a new trial. Slack v. State, 265 Ga. App. 306, 593 S.E.2d 664 (2004).

Coconspirator's testimony was not newly discovered evidence which warranted a new trial, as such, in addition to lacking credibility, was cumulative of the exculpatory evidence which was presented at trial, and impeached the inculpatory testimony of the coconspirator who was a witness for the prosecution. Silvers v. State, 278 Ga. 45, 597 S.E.2d 373 (2004).

Defendant's motion for a new trial based on newly discovered evidence that the victim and similar transaction witness fabricated their allegations was properly denied as: (1) the evidence failed to show that a material witness's trial testimony was physically impossible; and (2) the evidence merely served to impeach the victim's and the similar transaction witness's trial testimony. Cowan v. State, 279 Ga. App. 532, 631 S.E.2d 760 (2006).

Trial court did not err by denying defendant's motion for a new trial based on newly discovered evidence with regard to defendant's conviction for making an untrue material statement of fact and omitting other material facts in selling stock to a victim as the four affidavits in support of the defendant's motion set forth that, contrary to the victim's testimony on direct examination, the defendant had disclosed various legal difficulties to the victim, including the defendant's disbarment from the practice of law; the affidavits served only the purpose of impeachment, thus failing to satisfy the final requirement of case law that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Haupt v. State, 290 Ga. App. 616, 660 S.E.2d 383 (2008).

Defendant was not entitled to a new trial on the ground of newly discovered evidence in the form of testimony that was not available to defense counsel before trial because the witness's testimony regarding an agent's post-trial statement was merely impeaching the agent's testimony and did not establish as fact that the agent's testimony was knowingly and wilfully false. Chance v. State, 291 Ga. 241, 728 S.E.2d 635 (2012).

Ultimate criterion is probability of different result.

- Although newly discovered evidence may be somewhat cumulative of testimony previously introduced, and impeaching in the evidence's character, the ultimate criterion is the probability of a different result. Paden v. State, 17 Ga. App. 112, 86 S.E. 287 (1915); McDaniel v. State, 74 Ga. App. 5, 38 S.E.2d 697 (1946).

When cumulative or impeaching evidence might justify new trial.

- Cumulative evidence might justify a new trial, if it has effect of rendering clear and positive that which was before equivocal and uncertain. Dougherty v. State, 7 Ga. App. 91, 66 S.E. 276 (1909).

Evidence of new, independent fact, indicating accused's innocence, suffices.

- Evidence of new and independent fact, indicating innocence of accused, even though impeaching and cumulative in a sense, if other requirements have been fulfilled, requires new trial. Mosley v. State, 17 Ga. App. 740, 88 S.E. 415 (1916).

What is cumulative evidence.

- Cumulative evidence is evidence tending to establish a fact in relation to which there was evidence upon trial. Walker v. State, 126 Ga. 588, 55 S.E. 483 (1906); Lawhorn v. State, 155 Ga. 373, 116 S.E. 822 (1923); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Evidence is cumulative when the evidence goes to the fact principally controverted upon trial, and respecting which the party asking for a new trial produced testimony. Greenway v. Sloan, 211 Ga. 775, 88 S.E.2d 366 (1955); Fields v. State, 212 Ga. 652, 94 S.E.2d 694 (1956); Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

Evidence which covers same point is cumulative. McKinnon v. Henderson, 145 Ga. 373, 89 S.E. 415 (1916).

To be noncumulative, evidence must concern new issue or be of higher grade.

- It is only when newly discovered evidence either relates to particular material issue concerning which no witness has previously testified, or is of a higher and different grade from that previously had on same material point, that it will ordinarily be taken outside definition of cumulative evidence, and afford a basis for a new trial. Johnson v. State, 196 Ga. 806, 27 S.E.2d 749 (1943).

That newly discovered evidence incidentally strengthens defense used in trial does not make the evidence cumulative, when the evidence is comprised of new, distinct, and material facts about which no witness testified at trial, thereby supplying a link or gap missing in previous testimony. Bell v. State, 227 Ga. 800, 183 S.E.2d 357 (1971).

Evidence not rendered noncumulative merely because furnished by stranger to litigation.

- Evidence is not rendered noncumulative so as to afford a basis for demanding new trial on the ground of newly discovered evidence, merely because it is to be furnished by a stranger to the litigation upon a matter otherwise covered only by the testimony of the parties. Baumbach v. Dickens, 213 Ga. 745, 101 S.E.2d 702 (1958).

New evidence which is immaterial, incompetent, or merely impeaching is not ground for new trial. Ponder v. Walker, 107 Ga. 753, 33 S.E. 690 (1899); Fort v. State, 3 Ga. App. 448, 60 S.E. 282 (1908); Graham v. Owens, 18 Ga. App. 284, 89 S.E. 304 (1916); Jenkins v. Jenkins, 150 Ga. 77, 102 S.E. 425 (1920); Hill v. Overstreet, 28 Ga. App. 786, 113 S.E. 41 (1922); Fairburn & A. Ry. & Elec. Co. v. Hale, 32 Ga. App. 412, 123 S.E. 724 (1924).

Newly discovered evidence which is no more than impeaching in character, falls under inhibition of section, although in every other respect it meets requirements of this section dealing with circumstances under which new trial may be granted on ground of newly discovered evidence. Stembridge v. State, 84 Ga. App. 413, 65 S.E.2d 819 (1951), cert. dismissed, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 1130 (1952).

Evidence of perjury by witness insufficient.

- Affidavit indicating that the defendant's cousin allegedly committed perjury on the stand at the defendant's trial was not newly discovered evidence under O.C.G.A. § 5-5-23, and would have served only to impeach the cousin's trial testimony; therefore, such evidence was not a basis for a new trial. Morrison v. State, 256 Ga. App. 23, 567 S.E.2d 360 (2002).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial as the hearsay evidence of alleged post-trial statements that the victim and the victim's mother made to the relatives of the defendant, who had been convicted of two counts of child molestation regarding the victim, that the victim and the mother had admitted that they lied at trial about the molestation, only had the effect of impeaching the trial testimony of prosecution witnesses and a new trial would not be granted under such circumstances. Dowd v. State, 261 Ga. App. 306, 582 S.E.2d 235 (2003).

Failure by the defendant to comply with former Ga. Ct. App. R. 27(c)(2) because there was no citation of authority or reasoned argument to support an asserted error constituted an abandonment of a claim on appeal that the trial court erred in failing to order a lie detector test for the victim of the defendant's crime; however, even if there was no abandonment of the assertion of error, a new trial would not have been granted pursuant to O.C.G.A. § 5-5-23 because the results of any polygraph test given to the victim would not have done more than impeach the victim's credibility and there was no showing by the defendant that the evidence would not have merely been cumulative. Hammond v. State, 282 Ga. App. 478, 638 S.E.2d 893 (2006).

Extrajudicial admissions of party are not merely impeaching, and when such admissions show a new and distinct right to recover, or a different theory of recovery, from that relied upon at trial, or when similar extrajudicial admissions of the same party were not proved upon the trial of the case, such evidence may be grounds for a new trial. Wiggins v. Lord, 87 Ga. App. 486, 74 S.E.2d 389 (1953).

Trial court properly denied the second defendant's motion for new trial on the basis of newly discovered evidence that a codefendant lied under oath to obtain a favorable deal because the codefendant was not convicted of perjury, the second defendant failed to establish that the codefendant's testimony was the purest fabrication, and there was other evidence that supported second defendant's guilt. Lopez v. State, 267 Ga. App. 532, 601 S.E.2d 116 (2004).

3. Application

Post-trial admissions or declarations of successful party as ground for new trial.

- New trial may be granted for newly discovered evidence of material admissions of successful party, which is not cumulative to other evidence offered at trial. Evidence of admissions made by successful party after trial, or subsequent declarations inconsistent with that party's testimony on trial, may be ground for setting aside verdict, at least in interest of justice. Perry v. Hammock, 75 Ga. App. 171, 42 S.E.2d 651 (1947).

Evidence that conviction was procured by perjured testimony, with prosecutor's knowledge.

- When it is shown and not denied that conviction was procured by perjured testimony, which testimony state's prosecuting attorney knew to be perjured at time the testimony was introduced, due process as guaranteed by the Fourteenth Amendment is denied, and such testimony is not merely impeaching in character but has probative force. Burke v. State, 205 Ga. 656, 54 S.E.2d 350 (1949).

Section does not preclude evidence showing witness's error in former certificate as to transcript of record.

- Section does not prevent introduction of evidence which goes to show that error was made by witness in the witness's former certificate as to transcript of record. Such evidence does not impeach former testimony or transcript, although the evidence may be contradictory. It is explanatory, as showing way and manner in which such alleged error may have occurred. Sheffield v. Hawkins, 47 Ga. App. 162, 170 S.E. 100 (1933).

Discovered attempt of prosecutor to bribe individual to swear falsely.

- It is no cause for new trial that accused has discovered that certain person will swear that prosecutor sought to bribe the person to swear falsely. Duggan v. State, 124 Ga. 438, 52 S.E. 748 (1905).

Effect of showing that efforts were made to get certain persons to testify falsely against the defendant, which persons did not testify at all, could only be material as a circumstance to show that same effort was made to get those who did testify against the defendant to likewise swear falsely. It therefore follows that such newly discovered evidence is merely impeaching in character and is therefore not a good ground for new trial. Loomis v. State, 78 Ga. App. 153, 51 S.E.2d 13 (1948).

Newly discovered evidence tending to impeach state's witness. Jenkins v. State, 19 Ga. App. 626, 91 S.E. 944 (1917).

Officers' opinion testimony not evidence.

- Defendant was not entitled to a new trial based upon the prosecution having failed to disclose evidence favorable to the defense because two police officers' opinions as to the defendant's guilt were not evidence and would not have been admissible at trial. Smith v. State, 309 Ga. App. 241, 709 S.E.2d 823 (2011), cert. denied, No. S11C1266, 2011 Ga. LEXIS 954 (Ga. 2011).

Extrajudicial declarations by witness not ground for new trial.

- That witness, after trial, made certain declarations at variance with the witness's sworn testimony, will not work new trial. Lasseter v. Simpson, 78 Ga. 61, 3 S.E. 243 (1886); Smarr v. Kerlin, 21 Ga. App. 813, 95 S.E. 306 (1918); Adams v. Ginn, 27 Ga. App. 222, 107 S.E. 608 (1921).

Declarations of witness at variance with testimony.

- Declarations of witness at variance with what the witness testified to upon trial do not constitute reasons for grant of new trial. Gates v. State, 84 Ga. App. 367, 66 S.E.2d 342 (1951).

Individual's statement to another that the individual, rather than accused, perpetrated offense.

- Declarations to third persons against declarant's penal interest, to effect that declarant, and not accused, was actual perpetrator of offense, are not admissible in favor of an accused at the accused's trial, or to procure a new trial on the basis of newly discovered evidence. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

No new trial when movant's counsel knew of existence of certain papers before trial. Hearn v. Roberts, 27 Ga. App. 411, 108 S.E. 622, cert. denied, 27 Ga. App. 835 (1921).

Recent photo of another suspect not ground for new trial when other recent photo was available.

- Defendant's motion for new trial on basis of newly discovered, recent photo of another suspect and of district attorney's failure to bring such photo to attention of defendant or trial court was properly denied when the defendant had access to a different photo, which was less than two years old, and used the photo to examine the witness but did not seek to examine the state's eyewitnesses by use of the photo; and when the defendant failed to tender post trial evidence that any of the state's eyewitnesses would identify other suspect from newly discovered photo, leading trial court to conclude that photo was not so material that it would probably produce a different verdict. Timberlake v. State, 246 Ga. 488, 271 S.E.2d 792 (1980).

Improved condition of victim not new evidence.

- Although the defendant was convicted under O.C.G.A. § 40-6-394, the defendant was not entitled to a new trial under O.C.G.A. § 5-5-23, as the newly-discovered evidence that the victim was seen walking would not have produced a different result; evidence of this was produced at trial, and permanent uselessness of a limb was not required for a conviction under O.C.G.A. § 40-6-394. Adams v. State, 259 Ga. App. 570, 578 S.E.2d 207 (2003).

Evidence of parent's DUI arrests material 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).

New DNA evidence.

- Trial court did not abuse the court's discretion by granting the defendant a new trial based on newly discovered DNA evidence because the defendant satisfied the due diligence requirement of Timberlake as the record supported the trial court's determination that the ties and belt were not available to the defendant for DNA testing and analysis until 2015. The state's records and testimony given in a 2002 evidentiary hearing indicated that the belt and ties admitted in the 1977 trial were destroyed by the GBI in 1979, the items were not rediscovered by the defendant's attorneys until 2015, and touch DNA testing and analysis did not exist at the time of the 1977 trial. State v. Gates, Ga. , 840 S.E.2d 437 (2020).

Evidence offered to establish alibi, contradicted at trial.

- When evidence presented at hearing on motion to reopen case involving operation of automobile during period driver's license was suspended attempted only to establish alibi and there was positive evidence to the contrary presented at the original hearing, it was not newly discovered evidence as contemplated. Whitley v. State, 79 Ga. App. 600, 54 S.E.2d 486 (1949).

Evidence which would do no more than make case of oath against oath.

- When alleged newly discovered evidence would do no more than make case of oath against oath i.e., new witness swearing prosecutrix was lying and vice versa, on issues already covered at trial, presumption in favor of verdict is sufficient to turn scale or at least to sustain exercise of discretion by presiding judge upholding verdict. Jackson v. State, 56 Ga. App. 250, 192 S.E. 454 (1937).

Existing rulings of Interstate Commerce Commission court cannot be set up as newly discovered evidence. Macon D. & S.R.R. v. Robinson, 19 Ga. App. 370, 91 S.E. 492 (1917).

No new trial as to facts known to summoned witness who did not testify.

- When witnesses summoned by the defendant are present at trial but are not examined, a new trial will not be granted on the ground that since the verdict the defendant has for first time learned that the witnesses could have testified to facts material to the defendant's defense. Hall v. State, 117 Ga. 263, 43 S.E. 718 (1903); Rounsaville v. State, 163 Ga. 391, 136 S.E. 276 (1926).

Fact that trial witness would have testified differently had the witness not been ill is insufficient.

- It is no ground for new trial that witness who testified upon trial would have testified to other facts in contradiction of other testimony, had the witness not, at time of rendition of the witness's testimony, been ill and under influence of drugs. Duren v. Clark, 47 Ga. App. 429, 170 S.E. 693 (1933).

Forgetfulness by party of material fact on trial. Oglesby v. Cason, 65 Ga. App. 813, 16 S.E.2d 493 (1941).

Inadequate pre-trial investigation merits new trial.

- Defendant's motion for suppression of identification evidence in defendant's trial for armed robbery, in violation of O.C.G.A. § 16-8-41, was properly denied because the photographic line-up presented to the victim was not impermissibly suggestive, as four of the six men were within defendant's age range and had the same color and characteristics about their faces. However, it was error to deny the defendant's motion for a new trial pursuant to O.C.G.A. § 5-5-23, since defense counsel rendered ineffective assistance in that counsel failed to conduct a proper pre-trial investigation based on the defendant's claim of an alibi for which the defendant provided names of witnesses, as there was a reasonable probability that the outcome might have changed if the proper investigation was conducted. Tenorio v. State, 261 Ga. App. 609, 583 S.E.2d 269 (2003).

Testimony constituting expert opinions did not present "new and material facts" and such opinion evidence failed to constitute newly discovered evidence within O.C.G.A. § 5-5-23. Wesleyan College v. Weber, 238 Ga. App. 90, 517 S.E.2d 813 (1999).

New and material evidence found in civil case.

- Discovery of the fact that the former wife had remarried the day before a trial on issues of alimony, child support, and property disposition is new and material evidence warranting a new trial. Hegedus v. Hegedus, 255 Ga. 44, 335 S.E.2d 284 (1985).

Denial of a motion for new trial not abuse of discretion. Pendergrass v. State, 168 Ga. App. 190, 308 S.E.2d 585 (1983).

When the plaintiff in a malpractice action moved for a new trial claiming the discovery of new evidence in that a 1981 x-ray defendant introduced at trial as depicting the plaintiff's shoulder was, in fact, an x-ray of someone else's shoulder because a prosthesis was not depicted therein, but the record reveals that the plaintiff did not exercise due diligence in determining that fact before the end of trial, having fallen short of meeting the requirements for the grant of a new trial, plaintiff had no basis for asserting that the trial court had abused the court's discretion by denying the plaintiff's motion. Boatwright v. Eddings, 180 Ga. App. 742, 350 S.E.2d 291 (1986).

Sufficient evidence supported the defendant's conviction for malice murder, and there was no merit in the defendant's ineffective assistance of counsel claim; therefore, the defendant's motion for a new trial was properly denied. Jackson v. State, 277 Ga. 592, 592 S.E.2d 834 (2004).

Trial court properly denied the defendant's motion for a new trial based on newly discovered evidence challenging the victim's testimony that the victim knew the defendant but had never "partied" or smoked marijuana with the defendant as: (1) the defendant knew of the dispute as to how well the defendant knew the victim; (2) the defendant did not show any reason why the defendant could not in due diligence have obtained the affidavits at some earlier time; (3) the only issues raised in the affidavits were how well the defendant and the victim were acquainted and how they spent their time; and (4) the proffered testimony only went to impeach the witness. Joyner v. State, 267 Ga. App. 309, 599 S.E.2d 286 (2004).

Defendant's acts, including telephoning a known drug dealer about purchasing cocaine, and driving to an agreed location to make the transaction, sufficiently constituted a substantial step to convict the defendant of attempting to possess cocaine; thus, denial of defendant's motion for a new trial was not an abuse of discretion. Massey v. State, 267 Ga. App. 482, 600 S.E.2d 437 (2004).

In a prosecution for serial rape, the trial court did not abuse the court's discretion by denying a motion for a new trial after the defendant failed to establish the existence or the relevance of new evidence of the nonoccurrence of a prior incident not originally in the record. Jefferson v. State, 206 Ga. App. 544, 425 S.E.2d 915 (1992).

When the copies were not submitted until after entry of a directed verdict, copies of a prior declaratory judgment introduced by parties to that proceeding did not constitute newly discovered evidence for purposes of a motion for a new trial. McMillian v. Rogers, 223 Ga. App. 699, 479 S.E.2d 7 (1996).

Not only did counsel's testimony support the trial court's ruling denying the defendant a new trial, but the defendant did not produce evidence as to what the defendant should have known at the time of the defendant's decision not to testify that the defendant did not know, nor how that information would have altered the defendant's decision; in any event, the defendant failed to show that there was any likelihood that the outcome of the trial would have been different. Sims v. State, 278 Ga. 587, 604 S.E.2d 799 (2004).

Trial court did not err in denying a husband's motion for new trial as the wife presented sufficient evidence for which an equitable division of the value of two properties at issue could have been determined at the time the property's value began to include an element of marital property. Maddox v. Maddox, 278 Ga. 606, 604 S.E.2d 784 (2004).

Defendant was not entitled to a new trial based on newly discovered evidence that the defendant suffered from pigmentary dispersion syndrome because, even with vision impairment the defendant qualified for a Georgia driver's license; further, the argument at trial was that the defendant was not looking at the road and was sleep-impaired at the time of the accident, and there was evidence that the defendant had been drinking and swerved back and forth across the road making it unlikely that evidence of visual impairment would produce a different outcome. Harris v. State, 272 Ga. App. 366, 612 S.E.2d 557 (2005).

There was no manifest abuse of discretion in a trial court's denial of defendant's new trial motion, pursuant to O.C.G.A. § 5-5-23, with respect to the claim that one juror was not impartial because the juror had failed to answer a juror question regarding the juror's relationship to anyone who was convicted of, or a victim of, a child molestation crime, for which defendant was on trial, and it later was discovered that the juror's nephew had been convicted of such a crime six years earlier, as defendant never sought to exclude the juror during the trial, the juror indicated that the juror did not consider the nephew a close relative, and there was no bias or lack of impartiality shown. Allen v. State, 275 Ga. App. 826, 622 S.E.2d 54 (2005).

Upon convictions of possessing cocaine with intent to distribute and obstructing a law enforcement officer, the trial court properly denied the defendant's motion for a new trial, as: (1) a challenged juror affirmed the guilty verdict; (2) details about a government witness's plea deal would not have changed the trial outcome; and (3) lab results confirming the purity of the contraband seized was sufficient to show that the substance defendant possessed was cocaine. Tate v. State, 278 Ga. App. 324, 628 S.E.2d 730 (2006).

Defendant's aggravated assault with a deadly weapon conviction was upheld, and an amended motion for a new trial was properly denied, as the defendant was not entitled to a jury instruction on a claimed defense of "mere presence" as such was not a recognized defense, and the charge given to the jury covered all legal principles relevant to the determination of guilt; any confusion was cleared up by the court's further instruction that in order for the jury to convict the defendant of aggravated assault under a party to a crime theory, it would have to find that the defendant directly committed or intentionally helped in the commission of aggravated assault with a deadly weapon. Kelley v. State, 279 Ga. App. 187, 630 S.E.2d 783 (2006).

Trial court did not abuse the court's discretion in denying the defendant's extraordinary motion for new trial without a hearing as: (1) the alleged newly-discovered evidence was not so material that it would likely result in a different verdict; (2) the affidavits presented lacked the type of materiality required to support a new trial as they did not show the witnesses's trial testimony to have been the purest fabrication; (3) the defendant failed to act diligently in presenting the affidavits alleged to have supported the motion; (4) the trial court favored the original testimony, and as such, could not disregard the jury's verdict; and (5) the defendant failed to present the facts necessary to warrant a hearing on the motion. Davis v. State, 283 Ga. 438, 660 S.E.2d 354 (2008), cert.denied, mot. granted, 129 S. Ct. 397, 172 L. Ed. 2d 323 (2008).

Trial court did not abuse the court's discretion in denying a temporary staffing agency's motion for a new trial based on the failure of a widow and a hospital to spontaneously disclose their litigation agreement because there was nothing in the record to show that the agency's ignorance of the litigation agreement rendered the trial fundamentally unfair; because the agency's contractual obligation to indemnify the hospital for any damages the hospital had to pay on account of a nurse's negligence, the hospital had an obvious incentive from the outset to try to show that the widow's damages were entirely the nurse's fault, rather than solely or partly the fault of the hospital's own employee. Med. Staffing Network, Inc. v. Connors, 313 Ga. App. 645, 722 S.E.2d 370 (2012), cert. denied, No. S12C0940, 2012 Ga. LEXIS 533 (Ga. 2012).

Trial court did not err in denying the defendant's extraordinary motion for a new trial under O.C.G.A. § 5-5-41 because the codefendant's testimony at the hearing probably would not have produced a different result in the guilt/innocence phase if the testimony had been presented at the defendant's trial; the defendant did not demonstrate that the defendant took diligent steps to ascertain what testimony the codefendant could have been willing to give during the more than 17 years since the codefendant's trial. Drane v. State, 291 Ga. 298, 728 S.E.2d 679 (2012), cert. denied, U.S. , 133 S. Ct. 663, 184 L. Ed. 2d 472 (2012).

Trial court did not abuse it's discretion by denying a mother's motion for a new trial with regard to an order changing custody of the parties' one minor child to the father because the mother failed to produce newly discovered evidence, repeatedly interfered with the father's visitation, and the record established that the mother obtained a modification in another county under false pretenses. Thus, the mother's credibility had been completely impeached. Fifadara v. Goyal, 318 Ga. App. 196, 733 S.E.2d 478 (2012).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on newly discovered evidence as although the state discovered, following the convictions for attempted child molestation, that the Internet posting presented to the jury was not the posting to which the defendant responded, the court determined that the defendant had knowledge of the correct posting prior to trial and that, even if not, the correct posting was not so material as to produce a different result. Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013).

Trial court did not abuse the court's discretion by denying a mother's motion for a new trial based on newly discovered evidence with regard to a custody modification following the mother voluntarily giving up custody because there was no affidavit as to the mother's mental condition attached to the motion, and the fact that the father could be deployed for an extensive period was clearly contemplated in the court's final order and incorporated parenting plan. Carr-MacArthur v. Carr, 296 Ga. 30, 764 S.E.2d 840 (2014).

Evidence defendant cited not newly discovered evidence for new trial.

- Defendant presented nothing that would serve as a basis for providing relief based on a theory of newly discovered evidence because the alleged evidence the defendant cited was not "newly discovered evidence" that would justify the grant of a new trial but merely a new expert asserting an alternative theory about the case based on the same DNA evidence that had always been available to the defendant for review. Wheeler v. State, 290 Ga. 817, 725 S.E.2d 580 (2012).

Authentication of evidence.

- Trial court did not err in denying the defendant's motion for a new trial, pursuant to O.C.G.A. § 5-5-23, since defense counsel's actions constituted trial strategy, were not shown to be ineffective, nor was there any showing that defense counsel's conduct caused the defendant any harm, which was a necessary element of showing ineffectiveness; the motion was also denied with respect to the defendant's claim that the defendant had been coerced into helping commit the crimes as a letter purportedly written by a codefendant which corroborated the coercion defense was not authenticated, despite a request by the state for authentication, and there was no other evidence to support the defendant's claim. Menefield v. State, 264 Ga. App. 171, 590 S.E.2d 180 (2003).

Denial of motion proper.

- Under O.C.G.A. § 5-5-23, denial of a motion for new trial was proper when the evidence was consistent with the defendant's pre-trial statement that was introduced at trial. Mack v. State, 263 Ga. App. 186, 587 S.E.2d 132 (2003).

Trial court did not abuse the court's discretion in denying the defendant's motion for a new trial based on a newly discovered confession from the victim, which had been lost before trial; the victim testified that the confession had been signed under duress while the victim was chained and hanging by the victim's feet, and it was improbable that the confession would have produced a different verdict as, pretermitting whether the victim stole from the defendant, the defendant was not justified in binding the victim, hanging the victim from the victim's feet, and striking the victim. McPetrie v. State, 263 Ga. App. 85, 587 S.E.2d 233 (2003), overruled on other grounds by McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Corporate defendant, in a negligence and product liability action, was not entitled to a new trial or judgment notwithstanding the verdict because the jury was properly charged that each individual tortfeasor's conduct did not have to constitute a substantial contributing factor in the plaintiff's injury in order to be considered a proximate cause thereof. John Crane, Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004).

Defendant's claim that a trial court improperly denied a motion for new trial and for extraordinary new trial, based on Brady violations by the state in failing to apprise defendant that a lab technician who had run tests on defendant's blood for the presence of alcohol had switched other test samples on two prior occasions, lacked merit; even if most of the elements of a Brady violation were shown, defendant was not deprived of a fair trial because there was no reasonable possibility that the outcome of the trial would have been different because blood taken by hospital personnel also indicated that alcohol was present. Verlangieri v. State, 273 Ga. App. 585, 615 S.E.2d 633 (2005).

Defendant's aggravated stalking conviction was upheld on appeal, and a new trial was properly denied, as sufficient evidence of the defendant's contact with the victim, in violation of a protective order, and acts of harassment and intimidation supported the conviction; moreover, the failure to object to the state's of similar transaction evidence waived any consideration of the evidence on appeal. Kennedy v. State, 279 Ga. App. 415, 631 S.E.2d 462 (2006).

Trial court properly denied a defendant's motion for a new trial based on newly discovered evidence with regard to the defendant's conviction for the murder of the defendant's mother as the purported newly discovered evidence that another man with whom the defendant had used cocaine with on the day of the murder killed the defendant's mother after learning that the mother had a large sum of cash in the home in preparation for a trip, was part of the defendant's defense, and was vigorously advanced at trial; the reviewing court found no error after concluding that the newly discovered evidence would not have reasonably produced a different result. Hester v. State, 282 Ga. 239, 647 S.E.2d 60 (2007).

Trial court properly denied defendants' motions to suppress and for new trial with regard to the defendants' convictions for drug possession and trafficking based on obtaining allegedly new evidence that a stopping officer failed to run a computer check of one defendant's driver's license, as that officer had indicated, because there was no showing that defendants exercised due diligence in obtaining the additional evidence. In fact, the reason defense counsel provided for not obtaining the evidence sooner was a failure to believe that the computer check of the license was going to be a key issue. Woodard v. State, 289 Ga. App. 643, 658 S.E.2d 129 (2008), cert. denied, No. S08C1061, 2008 Ga. LEXIS 475 (Ga. 2008).

Trial court did not err in denying the defendant's motion for new trial based on newly discovered evidence where bystander's existence was known by defense prior to trial; moreover, as the bystander's claim that defendant had no gun was contradicted by three bystanders and a victim, it did not appear that evidence would have produced a different verdict. Banks v. State, 290 Ga. App. 887, 660 S.E.2d 873 (2008).

Trial court did not err in denying the defendant's motion for new trial based on newly discovered evidence because the defendant failed to establish that the new evidence attacked the creditability of a witness; credibility is attacked by showing that the pending charges and their dismissal reveal a possible bias, prejudice, or ulterior motive on behalf of the witness to give untruthful or shaded testimony in an effort to please the state and not merely to testify in accordance with the state's theory of the case. Delgiudice v. State, 308 Ga. App. 397, 707 S.E.2d 603 (2011).

Decision denying the defendant's motion for a new trial was proper, in light of the strength of the evidence that the defendant committed the charged offenses, including fingerprint evidence; it could not be concluded that new DNA evidence excluding the defendant as the donor of a semen sample recovered from a victim was so material that the DNA evidence warranted a new trial. Wright v. State, 310 Ga. App. 80, 712 S.E.2d 105 (2011).

Trial court did not err in denying the defendant's extraordinary motion for a new trial as the defendant could have moved to conduct DNA testing prior to trial and would have discovered that DNA on the gloves did not match the defendant, but rather the codefendant, and the defendant was thus unable to show that the delay in obtaining evidence was not caused by a lack of due diligence as required in an extraordinary motion for new trial. Bharadia v. State, 326 Ga. App. 827, 755 S.E.2d 273 (2014), aff'd, 297 Ga. 567, 774 S.E.2d 90 (Ga. 2015).

Hearing of Motions Under Section

Each case of newly discovered evidence must be judged on the case's own facts. Tanner v. State, 247 Ga. 438, 276 S.E.2d 627 (1981).

In motion for new trial, trial judge becomes trier of that issue. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Judge shall determine credibility of conflicting facts and contradictory witnesses.

- Upon hearing of motion for new trial, based upon newly discovered evidence, when affidavits are introduced supporting and disputing ground of motion, the trial judge is trier of facts, and it is the judge's province to determine credibility of conflicting facts and contradictory witnesses. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Court must consider alleged newly discovered evidence in comparison with evidence adduced at trial.

- Under motion for new trial based upon newly discovered evidence, trial court and appellate court are necessarily required to consider alleged newly discovered evidence in light of and in comparison with evidence adduced at trial, and on which conviction is based, in order that court may determine whether alleged newly discovered evidence is merely cumulative or impeaching. Accordingly, injury is done to the defendant in appeal to allow introduction of evidence adduced at trial. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Fact that evidence authorized verdict does not preclude different result on new trial.

- Fact that verdict was authorized by evidence adduced at trial in no way precludes probability of different verdict on another trial with newly discovered evidence, when evidence merely authorized, but did not demand, verdict, and such verdict was before vital, newly discovered evidence supplying missing link was before jury. Bell v. State, 227 Ga. 800, 183 S.E.2d 357 (1971).

Appellate court will not control trial judge's discretion regarding credibility of witnesses.

- Appellate court will not in appeal of motion for new trial control discretion of trial judge as to comparative credibility of witnesses who testified in support of motion and those who swore to contrary. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

Presumption in favor of verdict sustains judge's discretion in upholding verdict when evidence conflicts.

- Under motion for new trial based upon newly discovered evidence, when evidence consists of conflicting oaths, presumption in favor of verdict is sufficient to sustain exercise of discretion by judge in upholding verdict. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

When countershowing is made on application under section, trial judge becomes trier of issue thus formed and the judge's discretion is final and cannot be controlled by the appellate court unless there is a manifest abuse of the discretion. Herrin v. State, 71 Ga. App. 384, 31 S.E.2d 124 (1944).

In a motion for a new trial based upon newly discovered evidence in a criminal trial, when there is a countershowing by the state, the judge is the trier of facts, and it is the judge's province to determine credibility of facts and contradictory witnesses, and the judge's discretion in refusing a new trial on alleged newly discovered evidence will not be controlled unless manifestly abused. Bailey v. State, 47 Ga. App. 856, 171 S.E. 874 (1933).

When motion for new trial is based on ground of newly discovered evidence, and there is a countershowing, with conflicting evidence as to truth of alleged newly discovered facts, the Supreme Court will not interfere with grant or refusal of new trial on that ground, unless there has been a manifest abuse of discretion which law has vested in the trial judge, but not conferred on the Supreme Court. Southwell v. State, 188 Ga. 310, 4 S.E.2d 26 (1939).

Trial judge does not abuse the judge's discretion in refusing new trial when alleged newly discovered evidence is contradicted in countershowing. Atlanta Consol. S. Ry. v. McIntire, 103 Ga. 568, 29 S.E. 766 (1898); Crumley v. State, 23 Ga. App. 312, 98 S.E. 230 (1919); Edenfield v. Brinson, 149 Ga. 377, 100 S.E. 373 (1919); Fackler v. Lifsey, 28 Ga. App. 544, 112 S.E. 167 (1922).

When conflict arises as to material facts upon which motion for new trial based on newly discovered evidence was based and as to credibility of witnesses, the reviewing court will not hold that the court erred in overruling the motion. Harper v. State, 60 Ga. App. 684, 4 S.E.2d 734 (1939).

When countershowing rendered it doubtful as to what witness would testify.

- In motion for new trial upon ground of newly discovered evidence, when state made countershowing with a later affidavit of witness who proposed to testify in behalf of the defendant, which showed that the proposed witness largely repudiated the witness's first affidavit, rendering it doubtful or equivocal as to what the witness would testify, the judge did not err in overruling motion. Cannon v. State, 194 Ga. 277, 21 S.E.2d 689 (1942).

No error in denying defendant's motion for new trial.

- Trial court did not err in denying the defendant's motion for new trial when the state did not stipulate during the sentencing phase of trial that the shotgun found in the defendant's possession was improperly measured. The state simply did not object to the defendant's introduction into evidence of a document giving instructions for measuring the length of the barrel of a rifle or shotgun. Wiley v. State, 204 Ga. App. 881, 420 S.E.2d 783, cert. denied, 204 Ga. App. 922, 420 S.E.2d 783 (1992).

Time for amendments.

- Phrase "within the time allowed by law for entertaining a motion for new trial," indicates that the amendments should be allowed until the trial court's final disposition of a motion for a new trial timely filed and should not be limited by the 30-day period specified in O.C.G.A. § 5-5-40(a). Hegedus v. Hegedus, 255 Ga. 44, 335 S.E.2d 284 (1985).

Failure to request an evidentiary hearing in support of a claim of ineffectiveness of trial counsel raised in a motion for new trial results only in a waiver of the right to such a hearing, but not in a waiver of appellate consideration of the claim. Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Juror's alleged presence while codefendant pleaded guilty.

- Trial court properly denied the defendant's motion for a new trial as the trial court's finding that defendant's jurors were not present when the codefendant pleaded guilty was not clearly erroneous since the victims testified that: (1) the victims were present in the courtroom during the codefendant's guilty plea; (2) the victims were familiar with and would have recognized the jurors selected to hear the defendant's case; and (3) no jurors selected to hear the defendant's case were present in the courtroom during the codefendant's guilty plea. Alwin v. State, 267 Ga. App. 236, 599 S.E.2d 216 (2004).

Defendant's competency no basis to conduct hearing or issue ruling on new trial motion.

- Trial court erred by refusing to conduct a hearing or to rule on the defendant's motion for a new trial based upon the court's finding that the defendant was, at that time, mentally incompetent and unable to assist the counsel in challenging the conviction, as defendant's current mental incompetence provided no logical basis to delay a post-conviction proceeding to address whether the defendant was incompetent at trial, whether the trial court should have been on notice of the defendant's incompetency and conducted a hearing during trial, or whether the trial counsel was ineffective for failing to timely raise the competency issue. Florescu v. State, 276 Ga. App. 264, 623 S.E.2d 147 (2005).

Without a record of trial, the Court of Appeals was forced to be in accord with the presumption in favor of regularity of the trial court's denial of the motion, and assume that the court's findings were supported by sufficient competent evidence; thus, the findings made against the intervenor regarding the legitimation of a child he claimed to be the biological father of were upheld. King v. Lusk, 280 Ga. App. 40, 633 S.E.2d 350 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, § 284 et seq.

C.J.S.

- 66 C.J.S., New Trial, § 163 et seq.

ALR.

- Coram nobis on ground of newly discovered evidence, 33 A.L.R. 84.

Statements by witness after criminal trial tending to show that his testimony was perjured, as ground for new trial, 33 A.L.R. 550; 74 A.L.R. 757; 158 A.L.R. 1062.

Newly discovered evidence, corroborating testimony given only by a party or other interested witness, as ground for new trial, 158 A.L.R. 1253.

Statements of witness in civil action secured after trial, inconsistent with his testimony, as basis for new trial on ground of newly discovered evidence, 10 A.L.R.2d 381.

Evidence as to physical condition after trial as affecting right to new trial, 31 A.L.R.2d 1236.

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

Facts or evidence forgotten at trial as newly discovered evidence which will warrant grant of new trial in civil case, 50 A.L.R.2d 994.

Disclosure in criminal case of juror's political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 A.L.R.2d 1120.

Facts or evidence forgotten at trial as newly discovered evidence which will warrant grant of new trial in criminal case, 92 A.L.R.2d 992.

Perjury or wilfully false testimony of expert witness as basis for new trial on ground of newly discovered evidence, 38 A.L.R.3d 812.

New trial on ground of newly discovered evidence going to amount of recovery, 55 A.L.R.3d 696.

Recantation of testimony of witness as grounds for new trial - federal criminal cases, 94 A.L.R. Fed. 60.

5-5-24. Error in instructions; objection required in civil cases; requested instructions; review of charges involving substantial error.

  1. Except as otherwise provided in this Code section, in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. Objection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit. This subsection shall not apply in criminal cases.
  2. In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.
  3. Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.

(Ga. L. 1853-54, p. 46, § 1; Code 1863, § 3639; Code 1868, § 3664; Code 1873, § 3715; Ga. L. 1878-79, p. 150, § 1; Code 1882, § 3715; Civil Code 1895, § 5479; Penal Code 1895, § 1060; Civil Code 1910, § 6084; Penal Code 1910, § 1087; Code 1933, § 70-207; Ga. L. 1965, p. 18, § 17; Ga. L. 1966, p. 493, § 6; Ga. L. 1968, p. 1072, § 9.)

Cross references.

- Granting of new trials in instances where judge expresses opinion as to what has or has not been proved or, in criminal actions, expresses the judge's opinion as to guilt of accused, §§ 9-10-7 and17-8-55.

Law reviews.

- For article arguing for and against adoption of Rule 51 of the Federal Rules of Civil Procedure, so as to require objections to charges before verdict, see 1 Ga. St. B.J. 177 (1964). For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966). For article comparing sections of Ch. 11, T. 5 with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article, "Synopses of 1968 Amendments Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For comment on Bibb Transit Co. v. Johnson, 107 Ga. App. 804, 131 S.E.2d 631 (1963), see 16 Mercer L. Rev. 347 (1964).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the issues dealt with in the provisions, decisions under former Civil Code 1910, § 6084, former Penal Code 1910, § 1087, and former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17, are included in the annotations for this Code section.

Use of federal cases for interpretation.

- Subsection (b) is an adoption of Fed. R. Civ. P. 51, and thus federal cases provide guidance for resolving issues presented in the statute's interpretation. Daniels v. State, 137 Ga. App. 371, 224 S.E.2d 60 (1976). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Subsection (b) of this section is an adoption of Fed. R. Civ. P. 51 and decisions of federal courts are authoritative though not binding on the question of the statute's construction. Seaney & Co. v. Katz, 132 Ga. App. 456, 208 S.E.2d 333 (1974). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

As subsection (b) is similar to Fed. R. Civ. P. 51, federal courts' application has persuasive influence. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972). But see Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Interpretations of Fed. R. Civ. P. 51 are not authority for construction of section.

- Federal cases interpreting Fed. R. Civ. P. 51 are based upon substantially different law than this section and are not authority for construction of this section. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Intended departure of section from Fed. R. Civ. P. 51 as to requests to charge.

- Substance of paragraphs (a) and (b) of § 17 of Appellate Practice Act (Ga. L. 1965, p. 18) is embodied in a single paragraph in Fed. R. Civ. P. 51. It is thus manifest that the legislature in enacting § 17 of the Appellate Practice Act intended to depart from the federal rule in the matter of requests to charge. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Distinction between failure to request charge and object to its omission, and failure to object to charge.

- Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975).

Last clause of subsection (a) applies to charge, not to statements to accused in jury's presence.

- Negative command of subsection (a) that the statute's provisions shall not apply in criminal cases, is applicable to charge of court but is not applicable to statements made by court to accused in jury's presence but not a part of the charge to the jury. Thomas v. State, 234 Ga. 615, 216 S.E.2d 859, answer conformed to, 136 Ga. App. 165, 220 S.E.2d 736 (1975).

Objection or request to charge to restrict admission of evidence to special purpose.

- Effect of admission of evidence should usually be made the subject of objection or of a request to charge when it is desired that it be restricted to a special purpose. Deshazier v. State, 155 Ga. App. 526, 271 S.E.2d 664 (1980).

Discretion of trial judge in declaring mistrial.

- Trial judge in passing on motions for mistrial has a broad discretion, dependent on the circumstances of each case, which will not be disturbed unless manifestly abused. Furthermore, unless it is apparent that a mistrial is essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with. Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981).

Citing law in closing argument.

- Enactment of O.C.G.A. § 5-5-24 renders "reading the law" both unnecessary and incorrect, though it is counsel's right to state counsel's legal position to the jury. Freels v. State, 195 Ga. App. 609, 394 S.E.2d 405 (1990).

Explanatory comments.

- Explanatory comments to juror question are not the same as a recharge and subsection (c) of O.C.G.A. § 5-5-24 does not create an exception to a failure to object to such judicial comments. Brown v. State, 221 Ga. App. 454, 471 S.E.2d 527 (1996).

Statute is mandatory.

- Provision in O.C.G.A. § 5-5-24(b) that the court shall instruct the jury after the arguments are completed is mandatory and requires a complete charge be given after closing arguments are completed. Williams v. State, 277 Ga. 853, 596 S.E.2d 597 (2004).

Cited in Cain v. State, 113 Ga. App. 477, 148 S.E.2d 508 (1966); Georgia Power Co. v. Maddox, 113 Ga. App. 642, 149 S.E.2d 393 (1966); King v. Adams, 113 Ga. App. 708, 149 S.E.2d 548 (1966); Strong v. Palmour, 113 Ga. App. 750, 149 S.E.2d 745 (1966); Israel v. Wilson, 113 Ga. App. 846, 149 S.E.2d 839 (1966); Howington v. State, 114 Ga. App. 93, 150 S.E.2d 252 (1966); Matthews v. State Hwy. Dep't, 114 Ga. App. 163, 150 S.E.2d 464 (1966); Atkins v. Britt, 114 Ga. App. 258, 150 S.E.2d 841 (1966); Phillips v. State, 114 Ga. App. 417, 151 S.E.2d 474 (1966); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337, 151 S.E.2d 493 (1966); Westmoreland v. State, 114 Ga. App. 389, 151 S.E.2d 548 (1966); State Hwy. Dep't v. Calhoun, 114 Ga. App. 501, 151 S.E.2d 806 (1966); Saint v. Ryan, 114 Ga. App. 489, 151 S.E.2d 826 (1966); Clark v. Belleau, Inc., 114 Ga. App. 587, 151 S.E.2d 894 (1966); State Hwy. Dep't v. Edmunds, 115 Ga. App. 154, 154 S.E.2d 35 (1967); DeFee v. I.S. Berlin Press, Inc., 115 Ga. App. 206, 154 S.E.2d 452 (1967); Gunter v. State, 223 Ga. 290, 154 S.E.2d 608 (1967); Haskins v. Carson, 115 Ga. App. 336, 154 S.E.2d 626 (1967); Crider v. State, 115 Ga. App. 347, 154 S.E.2d 743 (1967); Sakobie v. State, 115 Ga. App. 460, 154 S.E.2d 830 (1967); Barnes v. State, 115 Ga. App. 431, 154 S.E.2d 878 (1967); McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967); Millholland v. Oglesby, 115 Ga. App. 715, 155 S.E.2d 672 (1967); Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21 (1967); Smith v. State, 116 Ga. App. 45, 156 S.E.2d 380 (1967); Crouch v. Nicholson, 116 Ga. App. 12, 156 S.E.2d 384 (1967); Gabriel v. Clary, 116 Ga. App. 151, 156 S.E.2d 465 (1967); City of Douglas v. Rigdon, 116 Ga. App. 306, 157 S.E.2d 66 (1967); Hawkins v. State, 116 Ga. App. 448, 157 S.E.2d 800 (1967); Colter v. Consolidated Credit Corp., 116 Ga. App. 520, 157 S.E.2d 812 (1967); Williams v. State, 223 Ga. 773, 158 S.E.2d 373 (1967); Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967); Smith v. Burtts, 116 Ga. App. 649, 158 S.E.2d 702 (1967); Partridge v. Lee, 116 Ga. App. 800, 159 S.E.2d 113 (1967); Stevens v. State, 117 Ga. App. 41, 159 S.E.2d 456 (1967); Douglas v. Herringdine, 117 Ga. App. 72, 159 S.E.2d 711 (1967); DuFour v. Martin, 117 Ga. App. 160, 159 S.E.2d 450 (1968); Coley v. State, 117 Ga. App. 149, 159 S.E.2d 452 (1968); Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 159 S.E.2d 730 (1968); Barnes v. Barnes, 224 Ga. 92, 160 S.E.2d 391 (1968); Burgess v. State, 117 Ga. App. 284, 160 S.E.2d 411 (1968); Atlanta Americana Motor Hotel Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 161 S.E.2d 342 (1968); Fett v. Alderman, 117 Ga. App. 677, 161 S.E.2d 350 (1968); Askew v. State, 117 Ga. App. 647, 161 S.E.2d 445 (1968); Buntin v. State, 117 Ga. App. 813, 162 S.E.2d 234 (1968); Callaway v. Miller, 118 Ga. App. 309, 163 S.E.2d 336 (1968); Caudell v. Sargent, 118 Ga. App. 405, 164 S.E.2d 148 (1968); O'Neil v. Moore, 118 Ga. App. 424, 164 S.E.2d 328 (1968); Turner v. State, 118 Ga. App. 650, 164 S.E.2d 924 (1968); Still v. Metropolitan Life Ins. Co., 118 Ga. App. 832, 165 S.E.2d 896 (1968); McGregor v. State, 119 Ga. App. 40, 165 S.E.2d 915 (1969); Harris v. State, 118 Ga. App. 848, 166 S.E.2d 94 (1969); Peek v. Miller, 119 Ga. App. 138, 166 S.E.2d 377 (1969); Colley v. Stump, 119 Ga. App. 220, 166 S.E.2d 616 (1969); Chalkley v. Ward, 119 Ga. App. 227, 166 S.E.2d 748 (1969); Ewing v. Whitehead, 119 Ga. App. 72, 166 S.E.2d 769 (1969); Griffin v. State, 225 Ga. 209, 166 S.E.2d 885 (1969); City of Atlanta v. Williams, 119 Ga. App. 353, 166 S.E.2d 896 (1969); Sancken Assoc. v. Stokes, 119 Ga. App. 282, 166 S.E.2d 924 (1969); Hatley v. State, 119 Ga. App. 371, 167 S.E.2d 217 (1969); Tabor v. Fowler, 119 Ga. App. 259, 167 S.E.2d 220 (1969); Jones v. State, 119 Ga. App. 322, 167 S.E.2d 237 (1969); Pirkle v. Widener, 119 Ga. App. 401, 167 S.E.2d 407 (1969); Newcomb v. Pattillo, 119 Ga. App. 495, 167 S.E.2d 665 (1969); Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969); Roberts v. Halpern's Home Stores of Ga., Inc., 119 Ga. App. 826, 169 S.E.2d 177 (1969); Harnage v. Hall, 120 Ga. App. 12, 169 S.E.2d 345 (1969); Worsham v. Trimble, 120 Ga. App. 180, 169 S.E.2d 689 (1969); Knox v. Knox, 225 Ga. 481, 169 S.E.2d 805 (1969); Boone v. Boone, 225 Ga. 610, 170 S.E.2d 414 (1969); Jones v. Atkins, 120 Ga. App. 487, 171 S.E.2d 367 (1969); Brown v. Kelley, 120 Ga. App. 788, 172 S.E.2d 181 (1969); Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 173 S.E.2d 741 (1970); Seagraves v. Kelley, 121 Ga. App. 412, 173 S.E.2d 885 (1970); Richmond County Hosp. Auth. v. Haynes, 121 Ga. App. 537, 174 S.E.2d 364 (1970); Shepard v. Morrison, 121 Ga. App. 762, 175 S.E.2d 407 (1970); Gaither v. Green, 122 Ga. App. 25, 176 S.E.2d 204 (1970); McChargue v. Black Grading Contractors, 122 Ga. App. 1, 176 S.E.2d 212 (1970); Colvin v. Truitt, 122 Ga. App. 233, 176 S.E.2d 502 (1970); Garmany v. Peavy, 122 Ga. App. 466, 177 S.E.2d 502 (1970); Seibers v. Morris, 226 Ga. 813, 177 S.E.2d 705 (1970); Shelton v. Housing Auth., 122 Ga. App. 535, 177 S.E.2d 832 (1970); Baxter v. Bryan, 122 Ga. App. 817, 178 S.E.2d 724 (1970); Reeves v. Morgan, 123 Ga. App. 64, 179 S.E.2d 648 (1970); Morehead v. Morehead, 227 Ga. 428, 181 S.E.2d 59 (1971); Denham v. Shellman Grain Elevator, Inc., 123 Ga. App. 569, 181 S.E.2d 894 (1971); Austin Lee Corp. v. Cascades Motel, Inc., 123 Ga. App. 642, 182 S.E.2d 173 (1971); Southern Home Ins. Co. v. Willoughby, 124 Ga. App. 162, 182 S.E.2d 910 (1971); Craft v. State, 124 Ga. App. 57, 183 S.E.2d 37 (1971); Lane v. Morrison, 124 Ga. App. 316, 183 S.E.2d 533 (1971); Harris v. Hub Motor Co., 124 Ga. App. 490, 184 S.E.2d 199 (1971); Brown v. Nutter, 125 Ga. App. 449, 188 S.E.2d 133 (1972); Security Dev. & Inv. Co. v. Ben O'Callaghan Co., 125 Ga. App. 526, 188 S.E.2d 238 (1972); Tanner v. State, 228 Ga. 829, 188 S.E.2d 512 (1972); Wells v. State, 126 Ga. App. 130, 190 S.E.2d 106 (1972); Whiteway Laundry & Dry Cleaners, Inc. v. Childs, 126 Ga. App. 617, 191 S.E.2d 454 (1972); G.E.C. Corp. v. Levy, 126 Ga. App. 604, 191 S.E.2d 461 (1972); Anchor Sign Co. v. LaBarge Pipe & Steel Co., 127 Ga. App. 86, 192 S.E.2d 714 (1972); Utzman v. Srochi, 127 Ga. App. 294, 193 S.E.2d 195 (1972); Hodges v. Carpenter, 127 Ga. App. 358, 193 S.E.2d 199 (1972); Hornbuckle v. Escambia Chem. Corp., 127 Ga. App. 522, 194 S.E.2d 344 (1972); Daugherty v. Vick, 127 Ga. App. 767, 195 S.E.2d 208 (1972); Newsrack Supply, Inc. v. Heinle, 127 Ga. App. 843, 195 S.E.2d 193 (1973); Daniels v. State, 230 Ga. 126, 195 S.E.2d 900 (1973); Averette v. Oliver, 128 Ga. App. 54, 195 S.E.2d 925 (1973); Gibson's Prods. Co. v. Mansfield, 128 Ga. App. 186, 196 S.E.2d 353 (1973); Johnson & Schultz Agents-Brokers, Inc. v. Overnite Transp. Co., 128 Ga. App. 392, 196 S.E.2d 681 (1973); Maynard v. Readdick, 128 Ga. App. 368, 196 S.E.2d 688 (1973); Bailey v. Perrin, 128 Ga. App. 476, 196 S.E.2d 899 (1973); Howard v. Gardner, 128 Ga. App. 545, 197 S.E.2d 386 (1973); Holzendorf v. Sheffield, 230 Ga. 497, 197 S.E.2d 701 (1973); Robertson v. Georgia Power Co., 128 Ga. App. 740, 197 S.E.2d 924 (1973); Locklear v. Morgan, 129 Ga. App. 763, 201 S.E.2d 163 (1973); Drake v. Shurbutt, 129 Ga. App. 754, 201 S.E.2d 184 (1973); Howington v. Puckett, 130 Ga. App. 584, 203 S.E.2d 916 (1974); Reynolds v. Huckeba, 231 Ga. 792, 204 S.E.2d 149 (1974); Jones v. Hutchins, 131 Ga. App. 808, 207 S.E.2d 224 (1974); Redman Dev. Corp. v. Pollard, 132 Ga. App. 98, 207 S.E.2d 588 (1974); Carter v. Harrell, 132 Ga. App. 148, 207 S.E.2d 648 (1974); Davenport v. Little, 132 Ga. App. 391, 208 S.E.2d 179 (1974); Davis v. Londeau, 132 Ga. App. 626, 208 S.E.2d 632 (1974); Thibadeau Co. v. McMillan, 132 Ga. App. 842, 209 S.E.2d 236 (1974); Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974); Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974); Haralson County Economic Dev. Corp. v. Hammock, 233 Ga. 381, 211 S.E.2d 278 (1974); DiMauro v. Barber, 133 Ga. App. 590, 211 S.E.2d 624 (1974)

Black v. Johnson, 233 Ga. 533, 212 S.E.2d 368 (1975); Luke v. McGuire Ins. Agency of Ga., Inc., 133 Ga. App. 948, 212 S.E.2d 889 (1975); Carpenter v. Cornwell, 133 Ga. App. 797, 213 S.E.2d 56 (1975); McNeill v. State, 134 Ga. App. 45, 213 S.E.2d 119 (1975); Patterson v. State, 233 Ga. 724, 213 S.E.2d 612 (1975); Maddox v. State, 233 Ga. 874, 213 S.E.2d 654 (1975); Scott v. State, 233 Ga. 815, 213 S.E.2d 676 (1975); Long v. State, 233 Ga. 926, 213 S.E.2d 853 (1975); Hand v. Williams, 234 Ga. 755, 218 S.E.2d 7 (1975); Gilbert v. Cherry, 136 Ga. App. 417, 221 S.E.2d 472 (1975); Ayers v. Nichols, 136 Ga. App. 532, 221 S.E.2d 835 (1975); National Trailer Convoy, Inc. v. Sutton, 136 Ga. App. 760, 222 S.E.2d 98 (1975); A.W. Easter Constr. Co. v. White, 137 Ga. App. 465, 224 S.E.2d 112 (1976); Walker v. Burton, 137 Ga. App. 783, 224 S.E.2d 786 (1976); Aldridge v. State, 236 Ga. 773, 225 S.E.2d 421 (1976); Raybon v. Reimers, 138 Ga. App. 511, 226 S.E.2d 620 (1976); Davis v. Southland Auto Salvage, Inc., 138 Ga. App. 571, 226 S.E.2d 749 (1976); Sentry Ins. v. Henderson, 138 Ga. App. 495, 226 S.E.2d 759 (1976); Dual S. Enters., Inc. v. Webb, 138 Ga. App. 810, 227 S.E.2d 418 (1976); Milton Inn, Inc. v. Spiva, 138 Ga. App. 843, 227 S.E.2d 525 (1976); Hogan v. City-County Hosp., 138 Ga. App. 906, 227 S.E.2d 796 (1976); Garmon v. Delta Air Lines, 139 Ga. App. 152, 227 S.E.2d 821 (1976); Seaboard Coast Line R.R. v. Davis, 139 Ga. App. 138, 227 S.E.2d 915 (1976); Pilkenton v. Eubanks, 139 Ga. App. 673, 229 S.E.2d 146 (1976); Piggly-Wiggly S., Inc. v. Tucker, 139 Ga. App. 873, 229 S.E.2d 804 (1976); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Benn v. McBride, 140 Ga. App. 698, 231 S.E.2d 438 (1976); Harper v. Georgia S. & Fla. Ry., 140 Ga. App. 802, 232 S.E.2d 118 (1976); Fisher v. Fisher, 238 Ga. 253, 232 S.E.2d 532 (1977); Ealey v. State, 141 Ga. App. 94, 232 S.E.2d 620 (1977); Hardin v. State, 141 Ga. App. 115, 232 S.E.2d 631 (1977); Hogan v. Olivera, 141 Ga. App. 399, 233 S.E.2d 428 (1977); David Shapiro & Co. v. Timber Specialties, Inc., 141 Ga. App. 354, 233 S.E.2d 439 (1977); Pertilla v. Farley, 141 Ga. App. 620, 234 S.E.2d 125 (1977); Allen v. Jentzen, 141 Ga. App. 548, 234 S.E.2d 136 (1977); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Crider v. Scoma, 142 Ga. App. 413, 236 S.E.2d 150 (1977); Rothstein v. First Nat'l Bank, 239 Ga. 216, 236 S.E.2d 350 (1977); Williams v. Central of Ga. Ry., 142 Ga. App. 523, 236 S.E.2d 498 (1977); Lewis v. Noonan, 142 Ga. App. 654, 236 S.E.2d 900 (1977); Lake v. Hamilton Bank, 143 Ga. App. 73, 237 S.E.2d 518 (1977); Minter v. Reid, 143 Ga. App. 92, 237 S.E.2d 632 (1977); Ameagle Contractors v. Couch Constr. Co., 143 Ga. App. 209, 237 S.E.2d 695 (1977); Williams v. Atlanta Gas Light Co., 143 Ga. App. 400, 238 S.E.2d 756 (1977); International Bhd. of Elec. Workers v. Briscoe, 143 Ga. App. 417, 239 S.E.2d 38 (1977); Nations v. State, 143 Ga. App. 559, 239 S.E.2d 216 (1977); Patterson v. Duron Paints of Ga., Inc., 144 Ga. App. 123, 240 S.E.2d 603 (1977); Genins v. Geiger, 144 Ga. App. 244, 240 S.E.2d 745 (1977); Gordon v. Gillespie, 144 Ga. App. 263, 241 S.E.2d 46 (1977); Burnett v. Doster, 144 Ga. App. 443, 241 S.E.2d 319 (1978); Kickasola v. Jim Wallace Oil Co., 144 Ga. App. 758, 242 S.E.2d 483 (1978); Fulton County v. Baranan, 240 Ga. 837, 242 S.E.2d 617 (1978); Mutual Benefit Health & Accident Ass'n v. Reed, 144 Ga. App. 853, 242 S.E.2d 731 (1978); DeBerry v. State, 241 Ga. 204, 243 S.E.2d 864 (1978); Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978); Financial Bldg. Consultants, Inc. v. St. Charles Mfg. Co., 145 Ga. App. 768, 244 S.E.2d 877 (1978); Moody v. Moody, 241 Ga. 286, 244 S.E.2d 875 (1978); Holloway v. McElroy, 241 Ga. 400, 245 S.E.2d 658 (1978); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978); Kennesaw Life & Accident Ins. Co. v. Hall, 147 Ga. App. 221, 248 S.E.2d 524 (1978); Floyd v. Thurman, 242 Ga. 428, 249 S.E.2d 230 (1978); Smith v. Nations, 147 Ga. App. 623, 249 S.E.2d 676 (1978); Atlanta Com. Bldrs., Inc. v. Polinsky, 148 Ga. App. 181, 250 S.E.2d 781 (1978); Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 250 S.E.2d 851 (1978); Stein Steel & Supply Co. v. Franco, 148 Ga. App. 186, 251 S.E.2d 74 (1978); Keenan v. Buchanan, 148 Ga. App. 279, 251 S.E.2d 120 (1978); Roberson v. Hart, 148 Ga. App. 343, 251 S.E.2d 173 (1978); Odom v. Odom, 148 Ga. App. 456, 251 S.E.2d 371 (1978); Moore v. State, 148 Ga. App. 469, 251 S.E.2d 376 (1978); Arnold v. DeKalb County Hosp. Auth., 148 Ga. App. 361, 251 S.E.2d 382 (1978); Freeman v. Saxton, 243 Ga. 571, 255 S.E.2d 28 (1979); Finley v. Griswold, 149 Ga. App. 612, 255 S.E.2d 87 (1979); Harris v. Collins, 149 Ga. App. 638, 255 S.E.2d 107 (1979); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Hines v. Tinnin, 150 Ga. App. 76, 256 S.E.2d 623 (1979); Snipes v. Leaseway of Ga., Inc., 150 Ga. App. 135, 257 S.E.2d 40 (1979); Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979); Cassier v. Golden, 151 Ga. App. 618, 260 S.E.2d 750 (1979); Rimes v. Weathers, 244 Ga. 875, 262 S.E.2d 145 (1979); Ramsey Brick Sales Co. v. Outlaw, 152 Ga. App. 37, 262 S.E.2d 227 (1979); Steed v. Steel Prod. Mfg. Co., 152 Ga. App. 350, 262 S.E.2d 616 (1979); Maddux v. R.O.E.M., Inc., 152 Ga. App. 732, 264 S.E.2d 31 (1979); Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980); Holder v. J.F. Kearley, Inc., 153 Ga. App. 843, 267 S.E.2d 266 (1980); Trade City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980); McKeighan v. Long, 154 Ga. App. 171, 268 S.E.2d 674 (1980); DeVane v. Smith, 154 Ga. App. 442, 268 S.E.2d 711 (1980); Whitman v. Burden, 155 Ga. App. 67, 270 S.E.2d 235 (1980); Brooks v. Ralston Purina Co., 155 Ga. App. 164, 270 S.E.2d 347 (1980); Garner v. Driver, 155 Ga. App. 322, 270 S.E.2d 863 (1980); Newkirk v. State, 155 Ga. App. 470, 270 S.E.2d 917 (1980); Head v. State, 246 Ga. 360, 271 S.E.2d 452 (1980); Midland Guardian Co. v. Rumsey, 155 Ga. App. 693, 272 S.E.2d 567 (1980); Irby v. Brooks, 246 Ga. 794, 273 S.E.2d 183 (1980); McDaniel v. Anderson, 155 Ga. App. 942, 274 S.E.2d 56 (1980); Landon v. Lavietes, 156 Ga. App. 123, 274 S.E.2d 120 (1980); McFarland v. Kim, 156 Ga. App. 781, 275 S.E.2d 364 (1980); Collins v. Martin, 157 Ga. App. 45, 276 S.E.2d 102 (1981); Sutphin v. McDaniel, 157 Ga. App. 732, 278 S.E.2d 490 (1981); Truitt v. State, 158 Ga. App. 337, 280 S.E.2d 384 (1981); Georgia Int'l Life Ins. Co. v. Harden, 158 Ga. App. 450, 280 S.E.2d 863 (1981); Blackmon v. State, 158 Ga. App. 665, 281 S.E.2d 634 (1981); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981); McCoy v. Hankins, 159 Ga. App. 569, 284 S.E.2d 71 (1981); Graham Bros. Constr. Co. v. C.W. Matthews Contracting Co., 159 Ga. App. 546, 284 S.E.2d 282 (1981); Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981); Conner v. State, 160 Ga. App. 202, 286 S.E.2d 441 (1981); Harden v. State, 160 Ga. App. 514, 287 S.E.2d 329 (1981); Atlanta Limousine Airport Servs., Inc. v. Rinker, 160 Ga. App. 494, 287 S.E.2d 395 (1981); City of Atlanta v. West, 160 Ga. App. 609, 287 S.E.2d 558 (1981); Levine v. Wyatt, 160 Ga. App. 632, 287 S.E.2d 649 (1981); Hathcock v. Hathcock, 249 Ga. 74, 287 S.E.2d 19 (1982); City of Atlanta v. State Farm Fire & Cas. Co., 160 Ga. App. 822, 287 S.E.2d 665 (1982); Combined Contractors v. Welch, 160 Ga. App. 790, 288 S.E.2d 229 (1982); Davis v. State, 161 Ga. App. 358, 288 S.E.2d 631 (1982); Harris v. Miller Bros.' Farms, 161 Ga. App. 377, 288 S.E.2d 639 (1982); Hines v. Good Housekeeping Shop, 161 Ga. App. 318, 291 S.E.2d 238 (1982); DOT v. Lowery, 163 Ga. App. 114, 291 S.E.2d 573 (1982); Glover v. Grogan, 162 Ga. App. 768, 292 S.E.2d 465 (1982); Brooks v. Douglas, 163 Ga. App. 224, 292 S.E.2d 911 (1982); Adams v. Wright, 162 Ga. App. 550, 293 S.E.2d 446 (1982); Newman v. James M. Vardaman & Co., 162 Ga. App. 878, 293 S.E.2d 462 (1982); Laughridge v. Moss, 163 Ga. App. 427, 294 S.E.2d 672 (1982); Lumpkin v. State, 249 Ga. 834, 295 S.E.2d 86 (1982)

Zant v. Akins, 250 Ga. 5, 295 S.E.2d 313 (1982); Green v. Weaver, 164 Ga. App. 286, 297 S.E.2d 57 (1982); Royal v. Davis Hauling Co., 164 Ga. App. 409, 297 S.E.2d 333 (1982); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982); Harper v. Samples, 164 Ga. App. 511, 298 S.E.2d 29 (1982); Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819, 298 S.E.2d 512 (1982); Hubacher v. Volkswagen Cent., Inc., 164 Ga. App. 791, 298 S.E.2d 533 (1982); Davis v. Williams, 165 Ga. App. 45, 299 S.E.2d 102 (1983); Gardner v. DOT, 165 Ga. App. 300, 299 S.E.2d 741 (1983); Morgan v. Citizens & S. Nat'l Bank, 165 Ga. App. 254, 299 S.E.2d 750 (1983); Teague v. State, 165 Ga. App. 470, 301 S.E.2d 667 (1983); Mansell v. Benson Chevrolet Co., 165 Ga. App. 568, 302 S.E.2d 114 (1983); Hester v. Associated Indem. Corp., 166 Ga. App. 63, 303 S.E.2d 321 (1983); Smith v. Hiawassee Hdwe. Co., 167 Ga. App. 70, 305 S.E.2d 805 (1983); Hurst v. J.P. Colley Contractors, 167 Ga. App. 56, 306 S.E.2d 54 (1983); Hyles v. Cockrill, 169 Ga. App. 132, 312 S.E.2d 124 (1983); DOT v. Whitehead, 169 Ga. App. 226, 312 S.E.2d 344 (1983); Henley v. State, 169 Ga. App. 682, 314 S.E.2d 697 (1984); Crawford v. State, 252 Ga. 552, 314 S.E.2d 880 (1984); Davis v. Stewart, 169 Ga. App. 733, 315 S.E.2d 6 (1984); Taylor v. State, 169 Ga. App. 842, 315 S.E.2d 661 (1984); Johnson v. State, 253 Ga. 37, 315 S.E.2d 871 (1984); DOT v. Clower, 170 Ga. App. 750, 318 S.E.2d 161 (1984); Fair v. State, 172 Ga. App. 49, 321 S.E.2d 790 (1984); Kirkland v. Williams, 172 Ga. App. 595, 323 S.E.2d 891 (1984); Allen v. Hiwassee Land Co., 172 Ga. App. 814, 324 S.E.2d 742 (1984); Jackson v. Rodriquez, 173 Ga. App. 211, 325 S.E.2d 857 (1984); Howard v. State, 173 Ga. App. 585, 327 S.E.2d 554 (1985); Mr. Transmission, Inc. v. Thompson, 173 Ga. App. 773, 328 S.E.2d 397 (1985); Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985); Walker v. Mitchell, 174 Ga. App. 738, 331 S.E.2d 82 (1985); Baldwin v. Associates Fin. Servs. of Am., Inc., 174 Ga. App. 795, 332 S.E.2d 21 (1985); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 333 S.E.2d 856 (1985); Wilkes v. DOT, 176 Ga. App. 739, 337 S.E.2d 404 (1985); Pritchett v. Anding, 177 Ga. App. 34, 338 S.E.2d 503 (1985); Associated Software Consultants Org., Inc. v. Wysocki, 177 Ga. App. 135, 338 S.E.2d 679 (1985); Georgia Farm Bureau Mut. Ins. Co. v. Bestawros, 177 Ga. App. 667, 340 S.E.2d 645 (1986); Rivers v. State, 178 Ga. App. 310, 342 S.E.2d 781 (1986); King v. State, 178 Ga. App. 343, 343 S.E.2d 401 (1986); Boring v. McPherson, 178 Ga. App. 623, 344 S.E.2d 459 (1986); American Game & Music Serv., Inc. v. Knighton, 178 Ga. App. 745, 344 S.E.2d 717 (1986); Rice v. State, 178 Ga. App. 748, 344 S.E.2d 720 (1986); Carswell v. State, 179 Ga. App. 56, 345 S.E.2d 66 (1986); DOT v. Poole, 179 Ga. App. 638, 347 S.E.2d 625 (1986); Nash v. State, 179 Ga. App. 702, 347 S.E.2d 651 (1986); Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986); Alexander v. State, 180 Ga. App. 640, 350 S.E.2d 284 (1986); White v. Archer Daniels Midland Co., 180 Ga. App. 829, 350 S.E.2d 788 (1986); Exley v. State, 180 Ga. App. 821, 350 S.E.2d 829 (1986); Beck v. State, 181 Ga. App. 681, 353 S.E.2d 610 (1987); Cox v. Cantrell, 181 Ga. App. 722, 353 S.E.2d 582 (1987); General Warranty Corp. Ins. Agents & Adm'rs v. Cameron-Hogan, Inc., 182 Ga. App. 434, 356 S.E.2d 83 (1987); Morris v. DeLong, 183 Ga. App. 124, 358 S.E.2d 285 (1987); Phillips v. State, 183 Ga. App. 194, 358 S.E.2d 480 (1987); Evans v. Harvey, 183 Ga. App. 284, 358 S.E.2d 668 (1987); Davis v. Charter By-The-Sea, Inc., 183 Ga. App. 213, 358 S.E.2d 865 (1987); Jones v. Davis, 183 Ga. App. 401, 359 S.E.2d 187 (1987); Shaw v. W.M. Wrigley, Jr., Co., 183 Ga. App. 699, 359 S.E.2d 723 (1987); Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987); Billingsley v. State, 183 Ga. App. 850, 360 S.E.2d 451 (1987); Dubberly v. P.F. Moon & Co., 184 Ga. App. 221, 361 S.E.2d 223 (1987); Precision Label Indus., Inc. v. Jones, 185 Ga. App. 161, 363 S.E.2d 605 (1987); Martin v. State, 185 Ga. App. 145, 363 S.E.2d 765 (1987); Carpet Transp., Inc. v. Dixie Truck Tire Co., 185 Ga. App. 181, 363 S.E.2d 840 (1987); Martini v. Nixon, 185 Ga. App. 328, 364 S.E.2d 49 (1987); Foskey v. Foskey, 257 Ga. 736, 363 S.E.2d 547 (1988); Mathis v. DOT, 185 Ga. App. 658, 365 S.E.2d 504 (1988); Westfall v. State, 185 Ga. App. 687, 365 S.E.2d 527 (1988); Smith v. State, 186 Ga. App. 303, 367 S.E.2d 573 (1988); Booth v. State, 186 Ga. App. 342, 367 S.E.2d 77 (1988); Davis v. Metropolitan Atlanta Rapid Transit Auth., 186 Ga. App. 366, 367 S.E.2d 885 (1988); Georgia Am. Ins. Co. v. Mills, 187 Ga. App. 128, 369 S.E.2d 768 (1988); Lissmore v. Kincade, 188 Ga. App. 548, 373 S.E.2d 819 (1988); Pool Mkts. S., Inc. v. Moore, 189 Ga. App. 48, 374 S.E.2d 831 (1988); Kelly v. State, 189 Ga. App. 67, 375 S.E.2d 81 (1988); Little v. State, 189 Ga. App. 451, 376 S.E.2d 232 (1988); Martin v. State, 189 Ga. App. 483, 376 S.E.2d 888 (1988); Haun v. State, 189 Ga. App. 884, 377 S.E.2d 878 (1989); Martin v. State, 190 Ga. App. 486, 379 S.E.2d 170 (1989); Christopher v. State, 190 Ga. App. 393, 379 S.E.2d 205 (1989); Waters v. Spell, 190 Ga. App. 790, 380 S.E.2d 55 (1989); McCounly v. State, 191 Ga. App. 266, 381 S.E.2d 552 (1989); Dixson v. State, 191 Ga. App. 410, 382 S.E.2d 357 (1989); Worley v. State, 193 Ga. App. 58, 386 S.E.2d 879 (1989); Fulton County v. Collum Properties, Inc., 193 Ga. App. 774, 388 S.E.2d 916 (1989); Hood v. State, 193 Ga. App. 701, 389 S.E.2d 264 (1989); Fidelity Nat'l Bank v. Kneller, 194 Ga. App. 55, 390 S.E.2d 55 (1989); Adcock v. State, 194 Ga. App. 627, 391 S.E.2d 438 (1990); Doctors Hosp. v. Bonner, 195 Ga. App. 152, 392 S.E.2d 897 (1990); Milam v. Attaway, 195 Ga. App. 496, 393 S.E.2d 753 (1990); Isaacs v. Williams Bros., 195 Ga. App. 812, 395 S.E.2d 11 (1990); Joe N. Guy Co. v. Valiant Steel & Equip., Inc., 196 Ga. App. 20, 395 S.E.2d 310 (1990); N.D.T., Inc. v. Connor, 196 Ga. App. 314, 395 S.E.2d 901 (1990); Strickland v. DOT, 196 Ga. App. 322, 396 S.E.2d 21 (1990); Sycamore Pellet Sys. v. Southeastern Steam, Inc., 196 Ga. App. 717, 397 S.E.2d 6 (1990); Harrison v. Ellis, 199 Ga. App. 199, 404 S.E.2d 348 (1991); O'Quinn v. Southeast Radio Corp., 199 Ga. App. 491, 405 S.E.2d 314 (1991); Cobble v. State, 199 Ga. App. 29, 404 S.E.2d 134 (1991); Holmes v. Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991); Anepohl v. Ferber, 202 Ga. App. 552, 415 S.E.2d 9 (1992); Crawford v. State, 203 Ga. App. 215, 416 S.E.2d 820 (1992); Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460, 416 S.E.2d 889 (1992); McDevitt & Street Co. v. K-C Air Conditioning Serv., Inc., 203 Ga. App. 640, 418 S.E.2d 87 (1992); Pope v. Pressley, 204 Ga. App. 115, 418 S.E.2d 635 (1992); Hicks v. Doe, 206 Ga. App. 596, 426 S.E.2d 174 (1992); Welch v. State, 207 Ga. App. 27, 427 S.E.2d 22 (1992); Crosby v. Spencer, 207 Ga. App. 487, 428 S.E.2d 607 (1993); Hesler v. State, 208 Ga. App. 495, 431 S.E.2d 138 (1993); Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 434 S.E.2d 450 (1993); McDuffie v. State, 210 Ga. App. 112, 435 S.E.2d 452 (1993); Wilson v. Muhanna, 213 Ga. App. 704, 445 S.E.2d 540 (1994); Nelson v. State, 213 Ga. App. 641, 445 S.E.2d 543 (1994); Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995); Sorrells v. Miller, 218 Ga. App. 641, 462 S.E.2d 793 (1995); Shilliday v. Dunaway, 220 Ga. App. 406, 469 S.E.2d 485 (1996); General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 472 S.E.2d 312 (1996); Rhoden v. Department of Pub. Safety, 221 Ga. App. 844, 473 S.E.2d 537 (1996); Hawkins v. State, 267 Ga. 124, 475 S.E.2d 625 (1996); Bedeski v. Atlanta Coliseum, Inc., 224 Ga. App. 435, 480 S.E.2d 881 (1997); Ford v. Saint Francis Hosp., 227 Ga. App. 823, 490 S.E.2d 415 (1997); Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 491 S.E.2d 909 (1997); Moody v. Dykes, 269 Ga. 217, 496 S.E.2d 907 (1998)

DOT v. Cannady, 230 Ga. App. 585, 497 S.E.2d 72 (1998); Orr v. CSX Transp., Inc., 233 Ga. App. 530, 505 S.E.2d 45 (1998); Medina v. State, 234 Ga. App. 13, 505 S.E.2d 558 (1998); Witty v. McNeal Agency, Inc., 239 Ga. App. 554, 521 S.E.2d 619 (1999); Levine v. Choi, 240 Ga. App. 384, 522 S.E.2d 673 (1999); Conger v. State, 245 Ga. App. 399, 537 S.E.2d 798 (2000); Hammett v. State, 246 Ga. App. 287, 539 S.E.2d 193 (2000); Rogers v. State, 247 Ga. App. 219, 543 S.E.2d 81 (2000); Heston v. Lilly, 248 Ga. App. 856, 546 S.E.2d 816 (2001); Clark v. State, 251 Ga. App. 715, 555 S.E.2d 88 (2001); Colkitt v. State, 251 Ga. App. 749, 555 S.E.2d 121 (2001); Dorminey v. State, 258 Ga. App. 307, 574 S.E.2d 380 (2002); McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003); Wakefield v. State, 261 Ga. App. 474, 583 S.E.2d 155 (2003); Brown v. State, 268 Ga. App. 629, 602 S.E.2d 158 (2004); Stack-Thorpe v. State, 270 Ga. App. 796, 608 S.E.2d 289 (2004); King v. Zakaria, 280 Ga. App. 570, 634 S.E.2d 444 (2006); Jones v. State, 280 Ga. App. 287, 633 S.E.2d 806 (2006); Pirkle v. Turner, 281 Ga. 846, 642 S.E.2d 849 (2007); Lawyers Title Ins. Corp. v. New Freedom Mortg. Corp., 288 Ga. App. 642, 655 S.E.2d 269 (2007); Lewis v. Van Anda, 282 Ga. 763, 653 S.E.2d 708 (2007); Russell v. State, 289 Ga. App. 789, 658 S.E.2d 400 (2008); Coney v. State, 290 Ga. App. 364, 659 S.E.2d 768 (2008); Horton v. Hendrix, 291 Ga. App. 416, 662 S.E.2d 227 (2008); McKenzie v. State, 284 Ga. 342, 667 S.E.2d 43 (2008); Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009); Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010); Doe v. State, 306 Ga. App. 348, 702 S.E.2d 669 (2010); Goody Prods. v. Dev. Auth. of Manchester, 320 Ga. App. 530, 740 S.E.2d 261 (2013); Lamar v. All Am. Quality Foods, Inc., 323 Ga. App. 572, 746 S.E.2d 665 (2013); Pampattiwar v. Hinson, 326 Ga. App. 163, 756 S.E.2d 246 (2014); Khalia, Inc. v. Rosebud, 353 Ga. App. 350, 836 S.E.2d 840 (2019).

Requested Instructions

1. In General

Purpose of the written request to charge as required by O.C.G.A. § 5-5-24 requires such desired requests to be in writing in order to inform the court as to the jury instructions to be given and the statute, as amended, refers to all cases both civil and criminal. Whatley v. State, 162 Ga. App. 106, 290 S.E.2d 316 (1982).

Absent request for specific charge, and objection to failure to charge, error not reversible. Herring v. McLemore, 248 Ga. 808, 286 S.E.2d 425 (1982).

When litigant need not request instructions.

- O.C.G.A. § 5-5-24 does not relieve a litigant from the necessity of requesting instructions except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that the statute fails to provide the jury with the proper guidelines for determining guilt or innocence. Jackson v. State, 161 Ga. App. 650, 289 S.E.2d 525 (1982).

Requests to charge must be timely and properly submitted in writing. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).

Changes to section have not made it unnecessary to file written requests to charge. Dixon v. State, 224 Ga. 636, 163 S.E.2d 737 (1968).

It is never error to deny oral request to charge. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970); Hudson v. Columbus, 139 Ga. App. 789, 229 S.E.2d 671 (1976).

Requests to charge must be made prior to arguments to jury.

- On appeal a party may not complain about court's failure to charge when no written requests to charge were received prior to arguments to jury. Ledbetter Bros. v. Holmes, 122 Ga. App. 514, 177 S.E.2d 824 (1970).

Where request is not timely or is not warranted by evidence.

- Even though written request to charge has been made by state or accused, trial court's failure to so charge is not error if (1) written request to charge has not been made at or before close of evidence, or (2) evidence does not warrant such requested charge. Bouttry v. State, 242 Ga. 60, 247 S.E.2d 859 (1978).

There was no abuse of discretion in the court's denial of the defendant's request that the state furnish proposed jury instructions 24 hours before trial. Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).

When a criminal defendant was tried on charges of kidnapping and murder, and after the court had recharged the jury three times on kidnapping, the defendant, for the first time, requested a charge on false imprisonment; the trial court did not err in failing to give the defendant's requested charge on false imprisonment; the request was not made at or before the close of the evidence, and the evidence did not authorize the charge. Peebles v. State, 260 Ga. 165, 391 S.E.2d 639 (1990).

Request must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in case. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970); Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).

Requested charge should be given only when the charge embraces correct and complete principle of law which has not been included in general instructions given and when request is pertinent and adjusted to the facts of the case. Gates v. Southern Ry., 118 Ga. App. 201, 162 S.E.2d 893 (1968).

Unless request is all legal and pertinent, court need not give any part of it. Slaughter v. Linder, 122 Ga. App. 144, 176 S.E.2d 450 (1970).

Denial of request to charge is proper if any portion of it is inapt or incorrect. Fowler v. Gorrell, 148 Ga. App. 573, 251 S.E.2d 819 (1978).

Legal, pertinent, written requests to charge should generally be granted.

- Some issues cannot be raised except by virtue of special pleading, but in general under this section, if request is legal, pertinent, and in writing it should be given. Atlanta Coca-Cola Bottling Co. v. Burke, 109 Ga. App. 53, 134 S.E.2d 909 (1964) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).

Request to charge must be in writing. Dumas v. Stafford & Son, 22 Ga. App. 365, 95 S.E. 1009 (1918); Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Trial court did not err by failing to instruct the jury on the Statute of Frauds because, while the defendant made an oral, non-specific request, the defendant did not offer a written charge adjusted to the facts of the case; the defendant did not include the defense of the Statute of Frauds in the pretrial order and did not move to modify that order; the defendant did not raise the defense of the Statute of Frauds simply by stating that the defendant intended to rely on all applicable statutes governing contracts and all applicable legal principles and rules of contract law, quasi-contracts, and equitable remedies and relief; and the defendant's promise to the plaintiffs was one of indemnity, which generally fell outside the Statute of Frauds. Zambetti v. Cheeley Invs., L.P., 343 Ga. App. 637, 808 S.E.2d 41 (2017).

Requested charge which does not accurately state a correct principle of law should be refused. Georgia & Fla. Ry. v. Newton, 140 Ga. 463, 79 S.E. 142 (1913) (decided under former Penal Code 1910).

Requested charge not applicable to facts should be refused. Smith v. Satilla Pecan Orchard & Stock Co., 152 Ga. 538, 110 S.E. 303 (1922) (decided under former Penal Code 1910).

If requested charge is not accurately adjusted to facts of case, request must be denied. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).

Argumentative requests.

- Request to charge, though correct, is properly refused if it is in the slightest degree argumentative. Emory Univ. v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).

That requested charge is substantially correct is not enough; it must contain a perfect statement of law applicable to question dealt with, to render it erroneous for court to refuse to give it in charge to the jury. Turnipseed v. State, 53 Ga. App. 194, 185 S.E. 403 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).

Request to charge is not perfect when inference is required to make it correct, and there is no error in refusing to charge such request. Evans v. Caldwell, 52 Ga. App. 475, 184 S.E. 440 (1936) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17), aff'd, 184 Ga. 203, 190 S.E. 582 (1937) (decided under former Code 1933, § 70-207, as it read prior to its repeal and reenactment by Ga. L. 1965, p. 18, § 17).

Purpose for requiring that copies of jury instruction requests be given to opposing counsel.

- Requirement that copies of jury instruction requests be given to opposing counsel at the time the requests are submitted to court can serve no useful purpose other than to afford opposing counsel an opportunity to argue to the court, before granting or refusing of such request, counsel's contentions with respect to whether such requested charges should be given. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Reason subsection (b) contains no provision relating to objections to refusals of requests to charge.

- Unlike subsection (a), subsection (b) contains no provision relating to objections to refusals to grant requests to charge. This is because when party has presented to court written requests that it instruct jury on law as set forth therein, court normally affords such party at that time an opportunity to state grounds upon which he contends such submitted request to charge should be given. The court is thus at that time put on notice as to the grounds upon which it is urged such requests to charge should be given. Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).

Extent of exemption of criminal defendants as to requests for instructions.

- While this section exempts defendant in criminal case from strict requirements imposed on litigants in civil cases to preserve issue on giving of or failure to give instructions to jury, it does not relieve him from necessity of requesting instructions, or making timely objection in trial court on failure to give instructions, except in those circumstances where omission is clearly harmful and erroneous as a matter of law in that it fails to provide jury with proper guidelines for determining guilt or innocence. Spear v. State, 230 Ga. 74, 195 S.E.2d 397 (1973); Sanders v. State, 138 Ga. App. 774, 227 S.E.2d 504 (1976); Lundy v. State, 139 Ga. App. 536, 228 S.E.2d 717 (1976); Weatherington v. State, 139 Ga. App. 795, 229 S.E.2d 676 (1976); Dorsey v. State, 141 Ga. App. 68, 232 S.E.2d 405 (1977); Mullins v. State, 144 Ga. App. 22, 240 S.E.2d 297 (1977); Richardson v. State, 144 Ga. App. 416, 240 S.E.2d 917 (1977); Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978); Byrd v. State, 156 Ga. App. 522, 275 S.E.2d 108 (1980); Brown v. State, 157 Ga. App. 473, 278 S.E.2d 31 (1981); Carr v. State, 183 Ga. App. 36, 357 S.E.2d 816, cert. denied, 183 Ga. App. 905, 357 S.E.2d 816 (1987).

While this section exempts the defendant in a criminal trial from the strict requirements imposed on litigants in civil cases to preserve issue on giving or failure to give instructions, this does not relieve the defendant from the necessity of requesting clarifying instructions or making clear the defendant's objection so that the trial court can exercise an opportunity to correct possible errors at most opportune point in proceedings and thus allow review by the appellate court. Bradham v. State, 148 Ga. App. 89, 250 S.E.2d 801 (1978), aff'd in part and rev'd in part on other grounds, 243 Ga. 638, 256 S.E.2d 331 (1979).

This section does not relieve the criminal defendant of the necessity of requesting instructions except in those circumstances where omission is clearly harmful and erroneous as a matter of law in that it fails to provide jury with proper guidelines for determining guilt or innocence. Key v. State, 147 Ga. App. 800, 250 S.E.2d 527 (1978).

Although a defendant in a criminal case is exempted from the requirements imposed on civil litigants to object to the giving of or failure to give jury instructions, the defendant is not relieved of the necessity of requesting instructions except when the omission is clearly harmful and erroneous as a matter of law in that the instruction fails to provide the jury with the proper guidelines for determining guilt or innocence. Sosebee v. State, 169 Ga. App. 370, 312 S.E.2d 853 (1983).

Supplemental instructions.

- Trial court did not violate O.C.G.A. § 5-5-24(b) in giving a charge on concurrent negligence after the close of evidence, as a conflict on the issue of concurrent negligence arose after the charge conference. Swanson v. Hall, 275 Ga. App. 452, 620 S.E.2d 576 (2005).

Ineffective assistance of counsel for failure to object not found.

- Trial counsel was not ineffective for failing to object to the trial court's inclusion of a simple assault charge after the charge conference at which the trial court stated that the charge would not be given, in violation of O.C.G.A. § 5-5-24(b), as the jury found the defendant guilty of simple assault on one of the aggravated assault charges so that the defendant failed to show how the failure to object prejudiced defendant's defense. Osterhout v. State, 266 Ga. App. 319, 596 S.E.2d 766 (2004).

2. Judge's Duty Regarding Proposed Action on Requested Charges

Court required to inform of proposed actions.

- Subsection (b) of O.C.G.A. § 5-5-24 requires a trial court to inform counsel of the court's proposed actions on requested charges prior to argument to the jury. Jiles v. Peters, 216 Ga. App. 288, 454 S.E.2d 178 (1995).

Subsection (b) of O.C.G.A. § 5-5-24 does not require a judge to accede to a party's requested charges, but merely requires the judge to inform the parties as to the judge's action on the requests prior to closing arguments, so as to allow the parties to argue their cases intelligently to the jury. Wozniuk v. Kitchin, 229 Ga. App. 359, 494 S.E.2d 247 (1997).

Purpose of requirement.

- Requirement of subsection (b) that judge inform parties prior to final argument of the judge's action on requested charges is designed to enable attorneys to argue their case to jury intelligently and on basis of guiding legal principles under which argument should be made. Daniels v. State, 137 Ga. App. 371, 224 S.E.2d 60 (1976).

Subsection (b) provides, in part, that the trial court "shall inform counsel of its proposed action upon the requests prior to their arguments to the jury . . . ." This is a mandatory rule, designed to permit counsel to argue the case intelligently before the jury. King v. State, 201 Ga. App. 391, 411 S.E.2d 278, cert. denied, 201 Ga. App. 904, 411 S.E.2d 278 (1991).

Failure to so inform parties not reversible error when no harm done.

- For reversal to be obtained for such inadvertent oversight of court failing to inform counsel as to court's proposed action on opposing party's requests to charge, it is necessary to show substantial prejudice to have resulted. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).

Trial judge's failure to inform counsel of the judge's intention regarding charges to the jury pursuant to subsection (b) is not reversible error when the record fails to show harm to the party involved. Braswell v. Owen of Ga., Inc., 128 Ga. App. 528, 197 S.E.2d 463 (1973); Brown v. State, 163 Ga. App. 661, 295 S.E.2d 581 (1982).

Mere failure to inform counsel of the court's intention to charge is not such an omission as will require the grant of a new trial in the absence of prejudice. Jackson v. Meadows, 157 Ga. App. 569, 278 S.E.2d 8 (1981).

Trial court's failure to adhere to the mandate of subsection (b) of O.C.G.A. § 5-5-24 was harmless error when counsel was not prevented from arguing the substance of any of the requests to charge and the court charged on all legal principles contained in the requests. King v. State, 201 Ga. App. 391, 411 S.E.2d 278, cert. denied, 201 Ga. App. 904, 411 S.E.2d 278 (1991).

When closing arguments were already completed at the time counsel called attention to the fact the trial court had not gone over requests to charge, no harmful error resulted from the court's admission. Latimore v. State, 170 Ga. App. 848, 318 S.E.2d 722 (1984); Roberts v. State, 223 Ga. App. 167, 477 S.E.2d 345 (1996).

When the defendant was convicted of two counts of rape, the defendant could not show that the defendant was harmed when the trial court failed to notify trial counsel of the court's ruling on the instruction on the sexual-battery charge before closing arguments, much less plain error, because the defendant could not be found guilty of rape or sexual battery if the jury believed the defense that th