Allen v. Rome Kraft Company
Allen v. Rome Kraft Company
Opinion of the Court
The first enumeration of error in this case is as follows: “The trial court erred in not granting the appellant a new trial upon her motion therefor because the verdict of the jury . . . was contrary to evidence and was without evidence to support it.” The purpose of the Appellate Practice Act of 1965 and amendments thereto was to eliminate highly technical rules. In a nutshell, it was the intention of the General Assembly that no enumeration of error be dis
Since we have held the overruling of a motion for new trial to be a reviewable judgment (Munday v. Brissette, 113 Ga. App. 147 (2b) (148 SE2d 55); Thornton v. State Hwy. Dept., 113 Ga. App. 351 (148 SE2d 66), we are of the opinion that when a motion for new trial is filed, as authorized under § 2 of the Act (Code Ann. § 6-702)), the effect of the filing of the motion is to toll the time for filing an appeal from the judgment on the verdict until the motion for new trial is overruled (unless appellant should elect to abandon or dismiss the motion). Consequently, an appeal from the judgment filed within 30 days after the overruling of the motion for new trial is timely.
We are further of the opinion that the appellant is entitled, under § 14 of the Act (Code Ann. § 6-810) to enumerate as error any ruling or judgment of the court affecting the judgment appealed from. The overruling of a motion for new trial does affect the judgment on the verdict, whether granted or overruled. In our opinion, any other ruling would defeat the intent of liberality and make procedure more technical than it was before the effort to liberalize it.
This appeal involves the overruling of a motion for a new trial filed by the protestant in a processioning case in which a jury in the Superior Court of Paulding County found in favor of the line marked favoring the applicant’s contention. The applicant is Rome Kraft Company. R. L. Allen was the
The record in this case is voluminous, consisting of over 200 pages of testimony with many conflicts, some of which are irreconcilable. The conclusion from the testimony in this case and from the lines drawn on the plat made by the processioners, which are absolutely straight, is that the processioners, assisted by a surveyor, started at a point purported to be a line between the two lots south of Lots 747 and 748; that the processioners started at a point several feet from the point which they believed to be on this line and then ran the line northward one degree 30 minutes east and proceeded in that direction until
Without going into much more detail, the evidence demanded the finding that the processioners sought to run straight lines where they thought previous ones had been run by another or others. On the entire line run by the processioners there was only one tree which was on the line run which had been marked as a line tree. There were various other marks, such as a wire fence, a piece of cultivated land, a place where timber had been cut on one side of the line, but none of these marks was exactly on the line run. No point selected was a corner which was purportedly shown by the evidence to be the true corner. The evidence shows further that trees on each side of the line run had been blazed on the side of the tree facing the line being run, which means that the blazes on the trees were surveyor blazes, indicating that the line being run at the time the trees were blazed was somewhere between the trees which were blazed. It thus appears that the lines marked by the processioners were straight lines laid off by the surveyor’s instruments and based on corners which only approximated the true corners. It is indicated in appellee’s brief that the processioners ran the orig
The evidence did not authorize the jury to find in favor of the line purportedly marked anew by the processioners, and the court erred in denying the protestant’s motion for new trial on the ground that the evidence did not authorize the verdict for the applicant and demanded a verdict for the protestant.
Judgment reversed.
Dissenting Opinion
dissenting. A judgment was entered on the verdict in the present case on October 19, 1965. A motion for new trial was filed and a judgment overruling the motion for new trial was entered on March 11, 1966. Within the time allowed the movant entered an appeal to this court on the judgment rendered on the verdict. The enumerations of error complain that the trial court erred in overruling the motion for 'new trial for various reasons.
It is my opinion that where an appeal is entered on a judgment rendered on a verdict and the only enumerations of error are those on the judgment overruling a motion for new trial, which latter judgment was entered several months subsequent to the judgment appealed from, such alleged error cannot be considered by this court.
Prior to the Act of 1953 (Ga. L. 1953, Nov. Sess., p. 440 et seq.) intermediate rulings of the court were excepted to pendente lite. This Act (Section (7) (a), p. 453; Code Ann. § 6-905) abolished such exceptions and, by amending Code § 6-701, in Section (7) (b) thereof, made provision for assigning-error on antecedent rulings made in the progress of the case
There is no disagreement between myself and the majority as to the ruling in the first headnote and some of the rulings in the corresponding division of the opinion. I agree that the enumerations of error are sufficiently definite. I agree that the motion for new trial tolled the time for filing the appeal. My only disagreement is that the court is passing upon alleged error in overruling a motion for new trial, committed by the trial judge subsequently to the judgment appealed from.
Reference
- Full Case Name
- ALLEN, Executrix v. ROME KRAFT COMPANY
- Cited By
- 21 cases
- Status
- Published