Opinion
46881.
ARGUED FEBRUARY 1, 1972.
DECIDED APRIL 6, 1972. REHEARING DENIED APRIL 14, 1972.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Phillip Slotin, for appellant.
Dunaway, Shelfer, Haas Newberry, Hugh F. Newberry, Norris C. Broome, for appellees.
Appellant obtained a verdict against the defendant-appellees. The appellees' motion for a new trial on the usual general grounds and two special grounds was heard by the trial judge and the following order entered thereon: "The defendants' motion for new trial as amended in the above styled case having come on before this court for a hearing and argument and briefs of counsel for all parties having been heard thereon and considered, It is hereby ordered that a new trial be granted in said case." Appellant, with proper certificate for review, entered his appeal to this court. Held:
"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, Smith v. Maddox-Rucker Bkg. Co., 8 Ga. App. 288 (1) ( 68 S.E. 1092); Stricklin v. Brotherton, 136 Ga. 456 ( 71 S.E. 774); Smith v. Maddox-Rucker Bkg. Co., 135 Ga. 151 ( 68 S.E. 1031); Rowe Bros. Motor Express Co. v. Twiggs County, 152 Ga. 548 ( 110 S.E. 303); Glenn v. Tankersley, 187 Ga. 129 ( 200 S.E. 709).
That the verdict is demanded must affirmatively appear before the first grant of a new trial by the trial judge will be disturbed. Fugazzi, Lovelace Co. v. Tomlinson, 119 Ga. 622 (2) ( 46 S.E. 831). The Act of 1959 (Ga. L. 1959, pp. 353, 354: Code Ann. § 6-1608) amending Code § 6-1608 was held unconstitutional in CTC Finance Corp. v. Holden, 221 Ga. 809 ( 147 S.E.2d 427). It not appearing that the verdict for appellant was demanded under the evidence we, in accordance with the above decisions, find no abuse of discretion in the first grant of a new trial.
Judgment affirmed. Hall, P. J., and Quillian, J., concur.