2021 Georgia Code
Title 5 - Appeal and Error
Chapter 5 - New Trial
Article 2 - Grounds

- 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.

- 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).

- 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).

- 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).

- 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.