Buchanan v. James, 134 Ga. 475

134 Ga. 475 | Ga. | 1910

Fish, C. J.

1. A motion for a new trial is a means of seeking to have a retrial or re-examination, in the same court, of an issue of fact, or of some part or portion thereof, after decision hy a jury, report of "a referee, or a decision hy the court thereon. It is an application for a retrial of' the facts of the case. 2 Thomp. Trials, § 2708; Castellano v. Blanchard, 106 Ga. 97 (31 S. E. 801); 5 Words & Phrases, 4788 et seq.

2. The grant of a nonsuit terminates the case without á final passing upon the issues of fact hy a jury, referee, or judge. It is a ruling hy the judge, that the plaintiff, under the evidence presented by him, has not. made out such a ease as to entitle liim to have the jury pass upon the issrtes of fact. It is a ruling of law by the judge, not a determination of the issues of fact. Under the practice in this State, it does not preclude the plaintiff from bringing another action, and seeking to ’ make out his case by the introduction of evidence on the trial thereof.

May 11, 1910.

Motion. Before Judge Worrill. Early superior court.

July 23, 1909. Pottle & Glessner and Park & Collins, for plaintiff. R. H. Sheffield and Pope & Bennet, for defendants.

3. It follows from the distinction which will appear from the two preceding headnotes that where the presiding judge grants a nonsuit, and thus terminates the case before a verdict or decision upon the issues of fact, a motion for a new trial is not the proper mode of.testing the correctness of such ruling. See Hudson v. Georgia Pacific Ry. Co., 85 Ga. 203 (11 S. E. 605); Central Railroad Co. v. Folds, 86 Ga. 42 (12 S. E. 216); Swain v. Macon Fire Ins. Co., 102 Ga. 96, 103 (29 S. E. 147); Southern Railway Co. v. James, 114 Ga. 198 (39 S. E. 849); City of Atlanta v. Miller, 125 Ga. 495 (54 S. E. 538).

3. There was no error in dismissing the motion for a new trial.

Judgment affirmed.

All the Justices concur.