Gantt v. Sweatman , 162 Ga. App. 738 ( 1982 )

162 Ga. App. 738 (1982) 293 S.E.2d 359

GANTT
v.
SWEATMAN.

63539.

Court of Appeals of Georgia.

Decided June 28, 1982.

Jeffrey R. Sliz, for appellant.

Kenneth J. Vanderhoff, Jr., for appellee.

POPE, Judge.

1. Appellant filed a timely motion for new trial on September 12, 1980. The rule nisi entered on that date set the matter down for hearing to be held on November 6, 1980. The record discloses that on September 18, 1981 the trial court denied appellant's motion without ever having a hearing thereon. Our Supreme Court has held "that the statutes pertaining to motions for new trial clearly indicate that a movant for new trial is entitled to a hearing; that the statutory provisions for hearing are consonant with the constitutional requirements for procedural due process; and that a movant for new trial is entitled to be heard on his motion in the trial court before a ruling is made thereon." Foster v. State, 230 Ga. 870 (199 SE2d 790) (1973); Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973). There is nothing in the record to indicate that appellant has waived or abandoned his right to a hearing. See Peyton v. Peyton, 236 Ga. 119 (1,2) (223 SE2d 96) (1976); Moody v. State, 14 Ga. App. 523 (2) (81 S.E. 588) (1914). Accordingly, we are constrained to return this case to the trial court for a hearing and disposition of appellant's motion for new trial.

2. In light of our holding in Division 1 of this opinion, we do not reach the merits of appellant's remaining enumerations of error.

Judgment reversed. Deen, P. J., and Sognier, J., concur.