15 S.E.2d 418 | Ga. | 1941
1. The evidence being no stronger for the caveators than it was in the former trial, and that for the propounders being substantially the same, the verdict probating the will was demanded, this court having held on a former appearance of this case that the evidence demanded a verdict probating the will.
2. It was erroneous to grant a new trial, although placed on the ground that the losing party and his sole counsel were involuntarily absent from the court-room at the time of the rendition of the verdict, through no fault of their own.
2. Since the verdict was the only one that could legally have been rendered, it was erroneous to set it aside, although neither the losing party nor his sole counsel was in court at the time, the counsel's absence being involuntary on his part and due to the fact that the presiding judge had requested him to appear before the grand jury to assist in drawing certain indictments, and the party's absence being due to his official duties as sheriff. The sustaining of the motion was upon the theory that had counsel been present he could have polled the jury. InJones v. Bullard,
Judgment reversed. All the Justices concur.