Harper v. Perry , 190 Ga. 233 ( 1940 )

1. The remedy by motion for a new trial in the superior court applies to the correction of errors committed on the trial and sufficiency of the evidence to sustain the verdict returned by the jury. Code, §§ 70-202 et seq. It does not apply to correction of errors in a judgment or decree based on a verdict. Fowler v. Johnson, 151 Ga. 122 (c) (106 S.E. 90); Vickers v. Robinson, 157 Ga. 731 (7) (122 S.E. 405); Smith v. Aultman, 160 Ga. 364 (2) (127 S.E. 774); Cook v. Powell, 160 Ga. 831 (20) (129 S.E. 546). Accordingly, it is not a good ground of attack on a motion for a new trial complaining of a verdict rendered in an equitable action that it was made and filed before rendition of the decree. Durrence v. Cowart, 160 Ga. 671 (129 S.E. 26).

2. Where a motion for new trial is pending in the superior court, there is no provision of law authorizing the movant to file a second separate original motion for new trial complaining of the same verdict. An instance of that character would not be comprehended by the Code, § 70-303, providing for extraordinary motions for new trial to be made after adjournment of the term of court.

3. In the instant case, at a hearing of the second motion for a new trial the respondent objected to proceeding with the hearing, on the ground that at the time the second motion was filed the movant had already pending in the court an original motion for new trial, complaining of the same verdict. The judge overruled the objections, and after consideration of the case overruled the second motion, and the movant excepted. After the filing of the bill of exceptions by the movant, the respondent filed a separate bill of exceptions in the form of an original bill, in which he recited the filing of the bill of exceptions by the movant, and assigned error on the refusal of the judge to sustain the respondent's objections to proceeding with the hearing of the second motion for a new trial. Held: (a) The bill of exceptions sued out by the respondent is in substance a cross-bill of exceptions, and entitled to be treated as such in the case presented by the bill of exceptions sued out by the movant. See Latimer v. Bennett, 167 Ga. 811-820 (146 S.E. 762).

(b) The judge erred in overruling the respondent's objections to proceeding with the hearing of the second motion for new trial.

(c) No question is raised as to whether the judge erred in refusing to sustain the respondent's objections on the ground that the second motion for a new trial was not made during the term at which the verdict was rendered. Any such question would be properly addressed to the merits of the motion for a new trial; and no ruling is made thereon.

Judgment reversed. All the Justicesconcur.

No. 13323. MAY 14, 1940. On November 10, during the November term, 1939, a verdict for the plaintiff in an equitable action was returned. A decree based thereon was entered on November 18. Before decree the defendant made a motion for a new trial, November 13, on which a rule nisi was issued, returnable on January 6, 1940. Service was acknowledged by the respondent on November 16, and the motion was formally filed on November 18, the day on which the court adjourned for the term. While the motion for a new trial was thus pending, the same defendant, after adjournment of the term, presented to the judge and filed a second motion for a new trial on December 16, 1939, returnable February 10, 1940. The hearing of this second motion was continued until March 9, 1940. At the hearing on that date the respondent objected to further proceeding in that matter, on the grounds: "(a) There can not be two valid motions for new trial between the same parties in the same case pending at the same time. (b) The second motion for new trial is nugatory, for the reason that there was already pending a motion for new trial at the time the second motion was made and filed." The objections were overruled on the ground that the first motion for new trial was made and filed before the signing of the final decree. After making that ruling, the judge on the same day rendered judgment overruling the second motion for a new trial. On that day the movant sued out a bill of exceptions assigning error on the judgment overruling the second motion. Thereafter, on March 13, 1940, the respondent sued out a bill of exceptions in which it was stated that if the judge had sustained the objections to further proceeding with the hearing of the second motion for new trial, that would have been a final disposition of that matter; and assigning error as follows: "The said Isaac Harper here and now assigns error on the said ruling and order of the court overruling and denying the said objections and protest of the said Isaac Harper, upon the ground that the same should have been sustained on each of the said grounds of protest and objections, and upon the ground that the said ruling was therefore contrary to law. . . And now within the time allowed by law comes Isaac Harper, and names the said G. A. Perry as defendant in error herein, and presents this his bill of exceptions or cross-bill of exceptions, whichever it may be properly termed, that the same may be signed and certified, and that the errors complained of may be reviewed and corrected by the Supreme Court of Georgia."