52 Ga. App. 241 | Ga. Ct. App. | 1935
1. “The appellate courts will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence, or upon a ground which involves purely questions of law, unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. This is true although the grant of the new trial be based upon an insufficient ground. . . , or upon a single ground not well taken. . . Unless the case can be brought within the exception just stated, it is useless for parties to bring before the appellate courts of this State the judgment of a trial judge granting a first new trial.” Piedmont Wagon & Mfg. Co. v. Bird, 49 Ga. App. 426 (176 S. E. 109), and cit. “Although the plaintiff’s action was formerly dismissed upon a general demurrer thereto, and this judgment was reversed by this court . . , there has, as yet, been but one trial on the merits. The same having resulted in a verdict for the plaintiff, and a new trial having been granted, the case falls within the established rule applicable to the first grant of a new trial.” Denson v. Denson, 97 Ga. 359 (23 S. E. 838). See, in the instant case, the former decision, reversing the dismissal of the petition'on general demurrer. Jenkins v. Brown, 48 Ga. App. 480 (173 S. E. 257).
2. On the first grant of a new trial to the defendant, after a verdict for $2550 in favor of the plaintiff, the judge entered the following order: “This suit is based upon an alleged breach of contract for the erection of a building . . Two pertinent issues are involved in the case, namely, first, whether a contract was made as alleged; and secondly, if so, what was the difference between the contract price and the cost necessary to have complied with the contract. On the first issue a stubborn contest was waged. The evidence with regard to the second issue was not highly satisfactory from the point of view of the plaintiff; and the defendant offered -little, if any, evidence with respect
Judgment affirmed.