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Mays v. Daniels

Court of Appeals of Georgia
Jun 24, 1986
347 S.E.2d 642 (Ga. Ct. App. 1986)

Opinion

71685.

DECIDED JUNE 24, 1986. REHEARING DENIED JULY 8, 1986.

Improper procedure. Lee Superior Court. Before Judge Banks.

Robert Mays, pro se. William E. Cannon, Jr., for appellees.


The Daniels filed this declaratory judgment action against Mays seeking resolution of a boundary line dispute; a jury returned a verdict for Mays. The trial court, determining that a photograph introduced by defendant had been wrongly admitted into evidence over objection, granted plaintiffs' motion for judgment notwithstanding the verdict explaining: "Since the Court committed error in admitting the aerial photo and since there was no other evidence offered by the Defendant concerning the location of the boundary line, the Court further erred in overruling Plaintiffs' Motion for Directed Verdict." Defendant Mays appealed.

"`The record as it exists at the close of the trial controls as to whether the verdict should be directed and as to whether the motion for judgment notwithstanding verdict should be granted . . . Under this rule the trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.' The evidence complained of here . . . would require a motion for new trial to obtain a ruling that this evidence had been erroneously admitted." Jones v. Grantham, 102 Ga. App. 436, 439 (2) ( 116 S.E.2d 668) (1960). See also SCM Corp. v. Thermo Structural Prods., 153 Ga. App. 372, 376-377 (3A) ( 265 S.E.2d 598) (1980). Thus, the trial court erred in granting plaintiffs' motion for judgment notwithstanding the verdict. If there was error in the admission of evidence, the remedy is a new trial. Id.; OCGA § 5-5-22.

Judgment reversed. Deen, P. J., concurs. Benham, J., concurs in the judgment only.

DECIDED JUNE 24, 1986 — REHEARING DENIED JULY 8, 1986 — CERT. APPLIED FOR.


Summaries of

Mays v. Daniels

Court of Appeals of Georgia
Jun 24, 1986
347 S.E.2d 642 (Ga. Ct. App. 1986)
Case details for

Mays v. Daniels

Case Details

Full title:MAYS v. DANIELS et al

Court:Court of Appeals of Georgia

Date published: Jun 24, 1986

Citations

347 S.E.2d 642 (Ga. Ct. App. 1986)
347 S.E.2d 642

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