Whitehead v. Dillard

129 Ga. App. 5 (1973)

198 S.E.2d 379

WHITEHEAD v. DILLARD.

48017.

Court of Appeals of Georgia.

Argued April 4, 1973.

Decided April 25, 1973.

Guy B. Scott, Jr., for appellant.

Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, for appellee.

CLARK, Judge.

Where a motion for a new trial is sustained, such ruling is not a final disposition of the case. Accordingly it is not appealable without a certificate of immediate review from the trial court. Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); State Hwy. Dept. v. Rosenfeld, 118 Ga. App. 524 (164 SE2d 259); Pilgreen's Airport, Inc. v. Gold, 122 Ga. App. 194 (176 SE2d 480). See also Fife v. Johnston, 225 Ga. 447 (169 SE2d 167) where our Supreme Court recognized that "Cruel though it was for the law to thus authorize a judge to deprive the loser of a right to appeal, we can not say the law is unconstitutional."

In the instant case the trial judge granted a new trial to defendant following a plaintiff's verdict upon the special ground that he had erred in denying defendant's motion for mistrial based on improper statements in the closing argument of plaintiff's attorney. As this was not a new trial granted on the discretionary general grounds, it was appealable, provided appellant had obtained a certificate of immediate review. Rice v. Matthews, 104 Ga. App. 593 (1) (122 SE2d 175); Southern States, Inc. v. Thomason, 128 Ga. App. 667. The record here containing no requisite certificate, our court is without jurisdiction and the motion to dismiss is sustained.

Appeal dismissed. Hall, P. J., and Evans, J., concur.