28 Ga. App. 576 | Ga. Ct. App. | 1922
Lead Opinion
1. The first grant of a new trial, whether on motion made in the court in which the trial was had or on certiorari, will always be affirmed unless the verdict and judgment rendered were as a matter of law demanded. This is true even though the new trial was granted upon some ground other than the discretionary grounds, and even though the judge in granting the new trial had no jurisdiction to pass upon the discretionary grounds, and even though the court may have committed error in passing upon the specific ground upon which it awarded a new trial. See in this connection, Weinkle v. Brunswick & Western R. Co., 107 Ga. 367 (33 S. E. 471); Cox v. Grady, 132 Ga. 368 (64 S. E. 262).
2. Where a petition for certiorari excepts to a verdict and judgment ren- . dered in the municipal cqurt of Atlanta when no motion for a new trial was made in that court, and the verdict and judgment are excepted to as being contrary to the weight of the evidence, and also excepted to as being unsupported by any evidence, the judgment of the superior court granting a new trial will, if it be the first grant of a new trial, be affirmed in this court when the verdict and judgment rendered were not as a matter of law demanded, even though the judge of the superior court had no jurisdiction, under the rulings in Gresham v. Lee, 152 Ga. 829 (111 S. E. 404), to set aside the judgment and. award a new trial upon the first assignment of error in the petition for certiorari, viz., that the verdict and judgment were contrary to the weight of the evidence; and this is true even though it was error to reverse the judgment of the municipal court upon the ground that the verdict and judgment were unsupported by the evidence.
3. There being a valid assignment of error in the petition for certiorari viz., that the verdict and judgment were unsupported by the evidence, and it appearing that the verdict and judgment rendered in the municipal .court of Atlanta' were not demanded as a matter of law, as ruled by the Supreme Court in answer to certified questions in this case (152 Ga., supra), the judgment of the superior court, sustaining the certiorari and awarding a new trial, is affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting. There is no difference of opinion between my colleagues and myself as to the meaning of the rulings made by the Supreme Court in answer to the questions certified to it in this case. I differ with them only as to the effect of these rulings. As I see it, they require that the judgment of the superior court, setting aside the finding rendered in the municipal court of Atlanta, should be reversed, so that the finding and judgment for the plaintiff in the municipal court should stand as rendered.
In response to questions propounded to it in this case, the Supreme Court has held that, where property has been listed for sale with two or more real-estate brokers, and one of them, with the knowledge of the owner, has interested a customer in the purchase, and, while the negotiations with such broker are still pending, the owner proceeds to close the sale with the same customer through another broker, the second broker being the first
The plaintiff in the municipal court, who was the first broker, obtained a judgment in his favor against the owner for the commissions, and the judge of the superior court sustained a certiorari and granted a new trial. The grounds contained in the petition for certiorari are but two: (1) that the finding and judgment of the municipal court is contrary to the weight of the evidence; and (2) that it is contrary to law as being without any evidence to support it. The petition for certiorari was sustained generally, and a new trial granted without seeking to base the decision upon either ground.
The questions for our consideration are: (1) was the judge in the instant case authorized to set aside the finding and judgment of the municipal court and grant a new trial upon the ground of certiorari that the judgment was against the weight of the evidence ; or (2) that it was contrary to law as being without evidence to support it; and (3) if he was not so authorized upon either of the grounds set forth, must his erroneous judgment be nevertheless affirmed by this court solely as a matter of appellate policy, under the general rule, and for the same reason underlying it, that the evidence did not demand a finding in favor of the prevailing party, even though the case be one where the judge was not permitted to entertain or consider any question relating to the weight of the evidence ? It is only as to this last proposition that any difference exists between my colleagues and myself.
In regard to the second of the propositions we are now considering, it was and is a question of law whether a verdict contrary to the one rendered in the municipal court was or was not demanded. As was said by Justice Cobb in Toole v. Edmondson, 104 Ga. 776, 782 (31 S. E. 25), “if upon considering the entire evidence, whether it be derived from an agreed statement of facts, oral testimony, documents, or other source, it would be proper, if the case were on trial in the superior court, for the judge to direct a verdict, a question of law only would be involved.” The Supreme Court has already adjudicated that “under the facts stated in the questions propounded by the Court of Appeals, it cannot be said, as a matter of law, that a finding was demanded in favor of either of the brokers, it being, under said facts, a question of fact as to which broker was the procuring cause of the sale and therefore entitled to commissions.” Nothing contained in the record outside of the facts stated in the question propounded could possibly authorize this court to say that a judgment in favor of the losing party was demanded. Since the facts there stated do not demand a judgment in his favor, there is nothing else in the record which can. Indeed, it is intimated by the Supreme Court that, considering the record as a whole, the judgment as actually, rendered might have been demanded. . It follows that, since, as 'a matter of law, the verdict rendered was not without evidence to support it, the judge of the superior court was not authorized to grant a new trial on this the second ground contained in the petition for certiorari.
It is well settled that a judgment sustaining a certiorari for the first time is “ equivalent to the first grant of a new trial,” and that the discretionary powers of the judge there stand upon the same footing as that of a trial judge under section 6204 of the Civil Code (1910). Strickland v. Reese, 110 Ga. 263 (34 S. E. 275); Ferry v. Mattox, 118 Ga. 146 (44 S. E. 1005); Savannah Ry. v. Fennell, 100 Ga. 474 477 (28 S. E. 437); Shirley v. Swafford, 119 Ga. 43 (2), 44 (45 S. E. 722); Formby v. Smith, 69 Ga. 769; Cox v. Snell, 77 Ga. 469. The first general grant of a new trial will be affirmed whenever it is possible to affirm it upon any satisfactory ground contained in the motion (Comer v. Grannis, 66 Ga. 255; Reid v. Whitfield, 48 Ga. 187; Taylor v. Central R. &c. Co., 79 Ga. 330 (3), 5 S. E. 114; Rowe v. Sam Weichselbaum Co., 3 Ga. App. 504, 60 S. E. 275); and it will be affirmed on the general grounds whenever the evidence is in conflict, even though it may appear that the judge has sought to base his decision upon some particular legal ground of the motion such as would render unnecessary a consideration of the evidence under the general assignments. Cox v. Grady, 132 Ga. 368, 370 (64 S. E. 262); Macon Consolidated Street Ry. Co. v. Jones, 116 Ga. 351 (42 S. E. 468); Weinkle v. Brunswick R. Co., 107 Ga. 367, 368 (33 S. E. 471). But in' no case can the grant of a new trial be made or affirmed except upon some ground actually set forth by the movant, since the judge “is confined to the grounds alleged in the motion.” Shipley v. Eiswald, 54 Ga. 520; American Grocery Co. v. Kennedy, 100 Ga. 462, 465 (28 S. E. 241); Turner v. Pearson, 93 Ga. 515, 519 (21 S. E. 104); Taylor v. Central R. &c. Co., supra; Ga., Fla. & Ala. Ry. Co. v. Fla. &c. Tobacco Co., 10 Ga. App. 38 (2) (72 S. E. 511). This rule is equally appli
Ordinarily, in motions for a new trial, it is not only the power, but the mandatory duty, of the judge in passing upon the general grounds to exercise his discretion as to the weight of the evidence, and his failure so to do will effect a reversal. As was said in Thompson v. Warren, 118 Ga. 644, 645 (45 S. E. 912); “When the evidence is conflicting, applications for new trials upon the ground that the verdict is contrary to the evidence, or contrary to the weight of the evidence, or decidedly and strongly against the weight of the evidence, are addressed to the sound legal discretion of the trial judge. The law imposes upon the trial judge the duty of exercising his discretion in all such cases. . . When it appears from the record that the trial judge in overruling the motion for a new trial has not exercised this discretion, the judgment overruling the motion will be reversed. . . ■ The law not only vests the trial judge with a broad discretion in the matter of, granting new trials, especially on the first application, but, 'where the evidence is conflicting, the judgment of the trial judge on this question is generally conclusive. In no case can this court reverse the judgment refusing a new trial, when the evidence is conflicting and no error of law has been committed, where the evidence has been approved by the trial judge in the exercise of the discretion vested in him by law, unless it is manifest that this discretion has been abused; and it has never been held that this discretion has been abused in any case where there was any evidence to authorize the verdict.” See also Central of Ga. Ry. Co. v. Harden, 113 Ga. 453, 461 (38 S. E. 949); Cotton States Seed Co. v. Macon &c. R. Co., 23 Ga. App. 206, 211 (98 S. E. 108). Upon the breadth of this discretion in evidential matters and upon the reluctance of the appellate courts to interfere, as a matter of law, the rule with reference to the non-interference with grants and refusals of new
It is upon this same principle that the general rule has been established that the sustaining of a certiorari for the first time will not be interfered with, unless the verdict as rendered was absolutely demanded, since, as has been already stated, such action “is equivalent to the first grant of a new trial.” Strickland v. Reese, and Shirley v. Swafford, supra. This discretion of the trial or superior-court, judge does not, however, contemplate that it be so exercised as to exceed or transcend State statutes. As plainly appears in Merriam v. Atlanta, supra, it is a discretion based upon the law and the facts in evidence. It is only because it is the general rule governing motions for new trials that the judge can and should exercise his discretion “when the verdict of a jury is found contrary to evidence and the principles of justice and equity,” or where the verdict “ may be decidedly and strongly against the weight of evidence, although there may appear some slight evidence in favor of the finding” (Civil Code, §§ 6082, 6088), that the rule of appellate policy either on motion for new trial or certiorari refuses to disturb the first grant of a new trial unless the judgment rendered was absolutely demanded. Thus, under the general rule, the appellate courts go no further than to ascertain whether or not the verdict was demanded; and if not, the judge will be presumed to have exercised the discretion which belonged to him in considering the general grounds, and his judgment will be upheld even though he has sought to assign some other and diiferent legal ground as the basis of his decision. That this is the underlying principle of the rule in ordinary eases of certiorari clearly appears from many of the decisions, where the only question determined by the superior-court judge was his disapproval of the verdict under the conflicting evidence. Mathews v. Parker, 124 Ga. 144 (52 S. E. 322); Crapp v. Morris, 108 Ga. 793 (2) (33 S. E. 951); Ferry v. Mattox, supra; Savannah Ry. v. Fennell, supra; Telford v. Coggins, 76 Ga. 683 (3), 684.
It is, therefore, the opinion of the writer that, in a certiorari