178 Ga. 83 | Ga. | 1933
Federal Land Bank of Columbia brought complaint for land against M. L. Gross. At the trial, after the plaintiff had submitted its evidence and closed, the defendant made a motion for a nonsuit, and the court sustained this motion. Thereupon the plaintiff made a motion for a new trial, which, after hearing, the court overruled. To the judgment overruling the motion the defendant sued out a writ of error to this court.
1. This court can not entertain the case thus brought.here for review. Where a nonsuit is granted, as in this case, a motion for a new trial is not the proper remedy, but the plaintiff should sue out a direct bill of exceptions if he desires the appellate court to review the question as to whether or not the grant of a nonsuit was error. A new trial is a retrial in the same court of an issue or issues of fact after a verdict by a jury. 46 C. J. 58. While this precise definition is not embodied in our statute, the nature of a motion for a new trial is recognized in our decisions. A new trial is peculiarly a remedy to set aside a verdict of a jury, or the finding of a court where the court has the authority to grant a new trial in a case where the issues of fact and law are both submitted to the court. In such a case as that, the finding and holding by the court on questions of fact is the equivalent of a' verdict. But where there has been no verdict of a jury or the equivalent thereof, a motion for a new trial can not be the appropriate remedy to correct errors. This court has not directly ruled upon this question, but it has been ruled by other courts. “Since a new trial can be granted only after a trial has been had, it should not be moved after judgment by default, . . nor after dismissal for failure of plaintiff to appear, nor after a nonsuit.” 46 C. J. 62 (4), and cit.
2. In view of the holding that a. motion for a new trial after the grant of a nonsuit is not the proper remedy, no question is presented to this court for- decision.
Writ of error dismissed.
