Opinion
17996.
ARGUED OCTOBER 14, 1952.
DECIDED NOVEMBER 12, 1952.
Probate of will. Before Judge Thomas. Glynn Superior Court. July 17, 1952.
Reese, Bennet Gilbert, for plaintiff in error.
Gowan, Conyers, Fendig Dickey, contra.
Where a new trial has been granted, the case stands ready for trial as if there had been no trial. The effect of the grant of a new trial by this court is to require the case to be heard de novo unless specific direction be given in regard thereto. Code, § 70-401; Anderson v. Clark, 70 Ga. 362 (2). And notwithstanding the plaintiff in error, in the first trial, made a written request for a charge on the law of undue influence, yet, upon the second trial it was error for the trial judge to charge on that subject where there was no evidence to authorize a charge on undue influence.
Judgment reversed. All the Justices concur, except Duckworth, C. J., and Head, J., who dissent.
No. 17996. ARGUED OCTOBER 14, 1952 — DECIDED NOVEMBER 12, 1952.
When this case was previously before this court, Leventhal v. Baumgartner, 207 Ga. 412 ( 61 S.E.2d 810), it was reversed because the evidence was insufficient to sustain the verdict for the caveator, which was based upon a lack of testamentary capacity. At the second trial the jury again found for the caveator, and the propounder by writ of error excepts to the overruling of an amended motion for new trial.
By amended motion exception is taken to the judge's charging upon the ground of undue influence. There was no evidence to authorize a charge on this subject. The trial judge in approving the amended motion attached the following certificate: "The above and foregoing amended motion is hereby allowed. The recital of facts contained therein is hereby approved as true and correct, with the following qualification as to grounds 4, 5, and 6: At the first trial of the case, counsel for the propounder, being the same person representing her in the second trial (the trial to which this motion is directed), requested the court in writing to give each charge now complained of in the amended grounds of this motion. On the second trial, the request was not directly and specifically withdrawn by the counsel, but the court asked counsel if he had any request for charge, and counsel said `No.' On the first appeal no question was raised as to the charge of the court. On the second trial, counsel states that he recognized that the court was giving in charge verbatim his entire request, including the portion dealing with undue influence as made at the first trial, but did not bring his opinion as to the propriety of the charge to the attention of the court until the presentation of this amendment to the motion for new trial. It is ordered that the amended motion with this qualification be filed with the record in said case."
The statement of facts in the present case clearly shows that the trial court did not unqualified approve amended grounds 4, 5, and 6, relating to the charge of the court, and these grounds of the motion present no question for decision by this court. Mims v. Mims, 151 Ga. 330 ( 106 S.E. 279); Godsey v. State, 171 Ga. 233 ( 155 S.E. 28); Gay v. State, 173 Ga. 793 ( 161 S.E. 603); Hatcher v. State, 176 Ga. 454 ( 168 S.E. 278); Clifton v. State, 187 Ga. 502 ( 2 S.E.2d 102); Andrews v. State, 196 Ga. 84, 86 (14) ( 26 S.E.2d 263).
The amended grounds of the motion for new trial not having been unqualified approved by the trial judge, there is nothing properly before this court except the general grounds of the motion for new trial, and the evidence being amply sufficient to support the verdict, the judgment denying the motion for new trial should be affirmed.
I am authorized to say that Mr. Chief Justice Duckworth concurs in this dissent.