56 Ga. 398 | Ga. | 1876
1. The judge below granted a new trial because the verdict was unsupported, on a material point, by the evidence. As we ruled during the last term, in the case of Sewell vs. Holland, 54 Georgia Reports, 611, only a very palpable abuse of discretion will be met, in this court, by a judgment of reversal, where the new trial ordered is put upon this ground, and is the first new trial granted in the case. A first verdict which is not satisfactory to the judge who presided at the trial is, presumptively, wrong; and it must be right to a very high degree of certainty for us to restore it after it has been set aside by him. We have no purpose to nullify the law which clothes him with the power to grant new trials for mistakes or misapprehensions of the jury. Since the abolishment of our ancient and excellent system of appeals to a special jury, this power of the circuit judge has acquired increased importance. If it has been borne down hitherto, it ought to be upheld now in its full force and vigor. If the jury and the judge cannot harmonize on the first trial, there ought, as a general rule, to be a second, if the judge is so much dissatisfied as to order it. He must not abuse his discretion, but let him exercise it freely and fearlessly. It is to that end that the law entrusts him with it: See Brown vs. Oattis, 55 Georgia Reports, 416.
2. We think there was ample reason for granting a new trial in the present case. The defendant’s cropper and not the defendant, was the party answerable to the plaintiff: 49 Georgia Reports, 580.
Judgment affirmed.