41470 | Ga. Ct. App. | Sep 21, 1965
The Act approved March 17, 1959 (Ga. L. 1959, pp. 353, 354), repealed Code § 6-1608 relating to the first grant of a new trial, and enacted a new § 6-1608 in lieu thereof by adding a proviso “that the trial judge shall state in all cases the ground, or grounds, upon which said new trial is granted and if said new trial is granted solely upon any one or more special grounds said grant of a new trial shall be reviewable by the appellate courts and shall be reversed if the trial judge committed harmful error in granting said motion on any special ground.” Prior to the addition of this proviso to said Code section, the first grant of a new trial, even on a special ground, would not be disturbed unless the law and the facts required the verdict. Watson v. Equitable Mortgage Co., 112 Ga. 253" date_filed="1900-11-27" court="Ga." case_name="Georgia Mills & Elevator Co. v. Clarke">112 Ga. 253 (1) (37 S.E. 363" date_filed="1900-11-27" court="Ga." case_name="Watson v. Equitable Mortgage Co.">37 SE 363); Stricklin v. Brotherton, 136 Ga. 456" date_filed="1911-06-20" court="Ga." case_name="Gate City Terminal Co. v. Thrower">136 Ga. 456 (71 S.E. 774" date_filed="1911-06-07" court="Ga. Ct. App." case_name="Easterling v. State">71 SE 774). The purpose of this proviso is to require the trial judge to specify the grounds upon which the grant of a first new trial is predicated, so that if it be solely on the special grounds, a review thereof, and a reversal, if erroneous, could be had upon appeal. The matter of stating the ground, or grounds, upon which the first grant of a new trial is ordered is not discretionary but mandatory, and where, as in the present case, a motion for new trial on general and special grounds is granted and the statute is not complied with, even though inadvertently, the judgment will be reversed and the order granting the new trial be vacated and the case be remanded with direction that the trial judge in any subsequent order granting a new trial comply with the requirements of the statute. See Code §§ 24-3901 (2), 6-1610; Finley v. Southern R. Co., 5 Ga. App. 722 (1) (64 SE 312). It is so ordered.
Judgment reversed with direction.