Opinion
19041.
ARGUED SEPTEMBER 15, 1955.
DECIDED OCTOBER 11, 1955.
Injunction. Before Judge Guess. DeKalb Superior Court. May 20, 1955.
C. W. Buchanan, for plaintiff in error.
Weekes Candler, contra.
1. "The first grant of a new trial shall not be disturbed by the appellate court, unless the plaintiff in error shall show that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge." Code § 6-1608.
2. "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).
3. "Where the damages sued for are not liquidated, but are speculative only, and rest in the discretion of the jury under the evidence, notwithstanding the evidence may demand a finding that the defendant is liable to the plaintiff in some amount, a verdict in the amount found by the jury is not as a matter of law demanded." Lawson v. Lawson, 61 Ga. App. 787 (2) ( 7 S.E.2d 603).
4. Applying the above principles, where, as here, the verdict as rendered is not demanded by the law and the evidence, this court will not interfere with the discretion of the trial judge in granting a first new trial. Solomons Co. v. Merchants c. Transportation Co., 121 Ga. 88 ( 48 S.E. 687); Cox v. Grady, 132 Ga. 368 ( 64 S.E. 262); Sims Estates v. Walker, 209 Ga. 534 ( 74 S.E.2d 465).
Judgment affirmed. All the Justices concur.
ARGUED SEPTEMBER 15, 1955 — DECIDED OCTOBER 11, 1955.
On October 27, 1950, Mrs. Mary F. Buchanan filed in DeKalb Superior Court, against Ralph L. Nash and Ed Downing, a petition seeking to recover damages, to obtain an injunction, and to determine a coterminous line between the parties. The petition was amended on November 4, 1950, and again on September 9, 1954. The case was heard at the September term of DeKalb Superior Court, the jury returned its verdict on September 13, 1954, and judgment thereon was entered on September 14, 1954, the case being in default since no defensive pleadings had been filed.
On October 8, 1954, the defendants filed a motion for new trial and a motion asking that the default be opened, and that the defendants be permitted to file defensive pleadings, and, by amendment, that the verdict and judgment be set aside. Without passing on the motion for new trial, the trial court entered a judgment setting aside the verdict and judgment. The petitioner excepted, and the opinion of this court, which reversed the judgment of the trial court, contained the statement: "The judgment is based upon a jury verdict, and before it can be set aside, the verdict of the jury must be set aside, and this can be done only by a proper motion for new trial or a motion which is in substance a motion for new trial." Buchanan v. Nash, 211 Ga. 343 ( 86 S.E.2d 111).
After the remittitur of this court was made the judgment of the lower court, the trial court granted the defendants' motion for new trial, and the case comes to this court for review upon the petitioner's exception to that judgment.