General Consideration

Applicability. —

This section is general, and applies to all cases. Goodwyn v. Veal, 50 Ga. App. 657 , 179 S.E. 126 , 1935 Ga. App. LEXIS 262 (1935).

O.C.G.A. § 5-3-2 applies only to final judgments rendered by the probate court. Sears v. State, 196 Ga. App. 207 , 396 S.E.2d 1 , 1990 Ga. App. LEXIS 872 (1990), cert. denied, No. S90C1413, 1990 Ga. LEXIS 637 (Ga. Sept. 4, 1990).

Appeal granted under statute extends to any interested party. —

Any interested party, dissatisfied with judgment of court of ordinary (now probate court) may appeal, except in cases involving removal of a guardian. Hobbs v. Cody, 45 Ga. 478 , 1872 Ga. LEXIS 260 (1872).

Creditor served by citation becomes party to proceeding, and may appeal under section if the creditor is dissatisfied with appointment of the administrator by ordinary (now judge of probate court), whether the creditor objects in court or not. Mitchell v. Pyron, 17 Ga. 416 , 1855 Ga. LEXIS 121 (1855).

General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724 , 44 S.E.2d 896 , 1947 Ga. LEXIS 538 (1947).

Sections dealing with appeals to superior court from inferior courts are in pari materia. —

In case of appeal from ordinary’s court (now probate court) to superior court, the various Code sections relating to appeals to superior court from justice’s courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

Effect on probate court’s original jurisdiction over probate of wills. —

Former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2 ) was not intended to invade original jurisdiction of courts of ordinary (now probate courts) granted by Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI, Sec. I, Para. I) and former Code 1933, § 113-603 over probate of wills. Hartley v. Holwell, 202 Ga. 724 , 44 S.E.2d 896 , 1947 Ga. LEXIS 538 (1947).

Appeal to superior court with waiver of judgment of probate court. —

When appraisers filed their return for year’s support, objections thereto were filed and matter was appealed by consent to superior court, and judgment of court of ordinary (now judge of probate court) was thereby expressly waived; such express waiver had same legal effect as formal decision or judgment of court of ordinary (now probate court) as to matter at issue, and status of widow as to vesting of her title was same as if decision or judgment had been formally rendered. Tilley v. King, 193 Ga. 602 , 19 S.E.2d 281 , 1942 Ga. LEXIS 435 (1942).

In no case, except by consent of parties, can an appeal be entered from court of ordinary (now judge of probate court) to superior court until after judgment has been rendered in case by court of ordinary. Bates v. Weaver, 145 Ga. 241 , 88 S.E. 986 , 1916 Ga. LEXIS 259 (1916) (decided under former Code 1910, § 5011).

Forwarding of lower court original pleadings. —

It is duty of ordinary (now judge of probate court) to send to clerk of superior court the original pleadings. Robinson v. McAlpin, 130 Ga. 489 , 61 S.E. 115 , 1908 Ga. LEXIS 322 (1908) (decided under former Code 1895, § 4467).

Failure to send up certificate that appellant has paid costs not ground for dismissal of appeal. Morgan v. Campbell, 133 Ga. 549 , 66 S.E. 369 , 1909 Ga. LEXIS 271 (1909) (decided under former Code 1895, § 4467).

This section does not require that ordinary (now judge of probate court) send up with appeal papers a certificate or other evidence showing that appellant has paid costs which accrued in trial of case. Morgan v. Campbell, 133 Ga. 549 , 66 S.E. 369 , 1909 Ga. LEXIS 271 (1909) (decided under former Code 1895, § 4466).

Inability to extend time for appeal. —

Pretermitting when the final order occurred, the superior court correctly held that the probate court had no authority to extend the time to appeal beyond the statutorily-prescribed period of 30 days. Accordingly, the probate court’s order extending the period beyond that provided for in the statute was of no legal consequence, and the superior court did not err in granting summary judgment. Duncan v. Moreland, 325 Ga. App. 364 , 751 S.E.2d 139 , 2013 Ga. App. LEXIS 875 (2013).

Parties participating fully in probate court participating in appeal to superior court. —

Superior court erred in dismissing an appeal from a probate proceeding under O.C.G.A. § 5-3-2(a) based on the court’s finding that appellants, a decedent’s mother and cousin, were not parties to the probate proceeding because appellants were treated by the probate court as parties and participated fully in the proceeding. In re Estate of Rogers, 323 Ga. App. 869 , 748 S.E.2d 505 , 2013 Ga. App. LEXIS 764 (2013).

Applicability

1.In General

Appeal only where probate court’s exclusive jurisdiction in whole case involved. —

Appeal must be from decision of court of ordinary (now probate court) in exercise of exclusive jurisdiction in whole case made by application to probate. A ruling striking some but not all grounds of caveat to application to probate a will is not such a decision. Hartley v. Holwell, 202 Ga. 724 , 44 S.E.2d 896 , 1947 Ga. LEXIS 538 (1947).

Motion to amend judgment does not extend time to file. —

An appeal from a motion to amend judgment of a probate court is not a final judgment and thus, is not an appealable decision within the meaning of subsection (a) of this section. Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of § 5-3-20(a) . Jabaley v. Jabaley, 208 Ga. App. 179 , 430 S.E.2d 119 , 1993 Ga. App. LEXIS 478 (1993), cert. denied, No. S93C1068, 1993 Ga. LEXIS 757 (Ga. July 1, 1993).

An executrix’s appeal from a probate court’s decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and 5-3-2 0, the executrix should have appealed within 30 days of a final order discharging her and ordering that she return a certain amount to the estate. In re Estate of Thomas, 285 Ga. App. 615 , 647 S.E.2d 326 , 2007 Ga. App. LEXIS 603 (2007).

Appeal allowed from appointment of permanent administrator. Deckle v. McLeod, 144 Ga. 289 , 86 S.E. 1082 , 1915 Ga. LEXIS 169 (1915).

Decision regarding compensation and discharge of temporary administrator is appealable. Comer v. Ross, 100 Ga. 652 , 28 S.E. 387 , 1897 Ga. LEXIS 124 (1897).

Decision concerning application of administrator or guardian for discharge is appealable. Maloy v. Maloy, 131 Ga. 579 , 62 S.E. 991 , 1908 Ga. LEXIS 152 (1908).

Dismissal of petition to remove administrator is appealable. Wells v. Chambers, 28 Ga. App. 429 , 111 S.E. 677 , 1921 Ga. App. LEXIS 478 (1921).

Order denying petition by incompetent World War I veteran for removal of guardian. —

Appeal lies from order denying petition by incompetent World War I veteran for removal of guardian and appointment of new guardian, for accounting and recovery of moneys due, and for other relief, on account of alleged returns by guardian without proper vouchers and a devastavit as to certain amounts. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 , 1936 Ga. App. LEXIS 546 (1936).

Appeal allowed from revocation of letters of guardianship, though no issue of fact is involved. Teasley v. Campbell, 133 Ga. 545 , 66 S.E. 273 , 1909 Ga. LEXIS 268 (1909); Teasley v. Vickery, 133 Ga. 721 , 66 S.E. 918 , 1910 Ga. LEXIS 34 (1910); Wash v. Wash, 145 Ga. 405 , 89 S.E. 364 , 1916 Ga. LEXIS 345 (1916).

When guardian is removed and the guardian’s letters revoked, upon rule issued by ordinary (now judge of probate court), after hearing on the answer to such rule filed by guardian, the person may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 , 1936 Ga. App. LEXIS 240 (1936).

Decision refusing ex parte application made by executor or administrator is appealable. Findlay v. Whitmire, 15 Ga. 334 , 1854 Ga. LEXIS 44 (1854).

Judgment for money against administrator or guardian under citation for settlement is appealable. Hobbs v. Cody, 45 Ga. 478 , 1872 Ga. LEXIS 260 (1872).

Probate court’s refusal to grant letters pendente lite is appealable. Barksdale v. Cobb, 16 Ga. 13 , 1854 Ga. LEXIS 162 (1854); Gresham v. Pyron, 17 Ga. 263 , 1855 Ga. LEXIS 103 (1855).

Judgment, final insofar as it adjudges that certain disbursements made by administrator were unauthorized, is appealable even though it reserves to ordinary (now judge of probate court) the right at a later date to order distribution of estate according to terms of will. Cubine v. Cubine, 69 Ga. App. 656 , 26 S.E.2d 462 , 1943 Ga. App. LEXIS 162 (1943).

Prerequisite to appeal from judgment setting apart homestead. —

Judgment of ordinary (now judge of probate court) setting apart a homestead can only be reviewed by certiorari unless objected to as provided for under former Civil Code 1895, § 2838 (see O.C.G.A. § 44-13-13 ). Fontano v. Mozley & Co., 121 Ga. 46 , 48 S.E. 707 , 1904 Ga. LEXIS 8 (1904).

Appeal from dismissal of application for homestead. —

No appeal lies from decision of ordinary (now judge of probate court) sustaining demurrer (now motion to dismiss) to application for homestead. In such case, certiorari is exclusive remedy for reviewing judgment. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616 , 34 S.E. 1024 , 1900 Ga. LEXIS 271 (1900).

Habeas corpus proceedings. —

Section does not confer right of appeal from decision of ordinary (now judge of probate court) in habeas corpus proceeding. Burden v. Barron, 154 Ga. 630 , 115 S.E. 1 , 1922 Ga. LEXIS 433 (1922) (decided under former Code 1910, § 5011).

No direct appeal from interlocutory order. —

Appeal from probate court to superior court is for the purpose of conducting a de novo investigation in the superior court, and not for the purpose of correcting errors of law committed in the probate court. Thus, there can be no direct appeal to the superior court from an interlocutory ruling in the probate court. Driver v. State, 198 Ga. App. 643 , 402 S.E.2d 524 , 1991 Ga. App. LEXIS 185 (1991).

Decisions regarding annual returns of administrators are not covered by this section. Adams v. Beall, 60 Ga. 325 , 1878 Ga. LEXIS 454 (1878) (decided under former Code 1873, § 3624).

Appeal by mental health facility from adverse commitment decision. —

Mental health facility did not have the right to appeal from an adverse involuntary commitment decision and the facility did not have statutory authority, nor would it have been constitutional to detain the patient pending appeal of a probate court order of discharge. Georgia Mental Health Inst. v. Brady, 263 Ga. 591 , 436 S.E.2d 219 , 1993 Ga. LEXIS 792 (1993).

Appeal from decisions of commissioners appointed by ordinary (now judge of probate court) not authorized. Pope v. Hays, 30 Ga. 539 , 1860 Ga. LEXIS 139 (1860).

Decedent’s non-party mother lacked standing to appeal. —

Notwithstanding a settlement agreement in which the decedent’s wife released any interest in the decedent’s estate, given that the decedent’s mother was not a party in the probate court, despite publication of notice and service by the wife, the mother lacked standing to appeal the probate court’s decision to award the wife a year’s support. Booker v. Booker, 286 Ga. App. 6 , 648 S.E.2d 445 , 2007 Ga. App. LEXIS 681 (2007).

No appeal lies from preliminary ruling in main case. —

Appeal to superior court from preliminary ruling and before court of ordinary (now probate court) rendered judgment in the main case, would improperly usurp jurisdiction of court of ordinary, in violation of Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI. Sec. I, Para. I) and former Code 1933, § 113-613 (see O.C.G.A. § 53-5-1 ) depriving that court of jurisdiction to decide main question. Hartley v. Holwell, 202 Ga. 724 , 44 S.E.2d 896 , 1947 Ga. LEXIS 538 (1947).

2.Distinction Between Appeal and Certiorari

Certiorari is proper but not exclusive remedy to correct certain errors in decisions of courts of ordinary (now probate courts). Stephens v. Bell, 41 Ga. App. 353 , 153 S.E. 99 , 1930 Ga. App. LEXIS 584 (1930).

Election of remedy. —

When either appeal under former Civil Code 1910, § 4999 (see O.C.G.A. § 5-3-2 ), or certiorari under former Civil Code 1910, § 5181 (see O.C.G.A. § 5-4-2 ) was appropriate, movant may elect which one the movant will pursue. Pierce v. Felts, 146 Ga. 809 , 92 S.E. 541 , 1917 Ga. LEXIS 511 (1917).

Distinction between statutory appeal on merits and appeal by writ of error. —

Statutory appeal providing for another trial in appellate court on merits of the case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding the inquiry is into correctness of judgment upon pleading and evidence before the trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934).

Jurisdiction

Appeal imparts same jurisdiction as was possessed by probate court. —

Appeal brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary (now probate court). Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972).

Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178 , 97 S.E.2d 567 , 1957 Ga. LEXIS 333, transferred, 96 Ga. App. 110 , 99 S.E.2d 517 , 1957 Ga. App. LEXIS 516 (1957).

Province of probate court versus proper trial court. —

In a child’s appeal of a trial court’s declaratory judgment that the will of a parent was republished by a codicil and that a portion of a prior order of a probate court that the ex-spouse of the testator was to be treated as if having predeceased the testator was null and void was upheld on appeal as the issue regarding the construction of the will regarding the ex-spouse was a question of law for the trial court and was not within the jurisdiction of the probate court. Honeycutt v. Honeycutt, 284 Ga. 42 , 663 S.E.2d 232 , 2008 Ga. LEXIS 523 (2008).

Effect of Appeal

Whole case brought up. —

By § 5-3-29 , appeal under this section brings up whole case for new hearing. Moody v. Moody, 29 Ga. 519 , 1859 Ga. LEXIS 374 (1859).

Case on appeal from the court of ordinary (now probate court) brings the whole case up for a new hearing. Goodman v. Little, 213 Ga. 178 , 97 S.E.2d 567 , 1957 Ga. LEXIS 333, transferred, 96 Ga. App. 110 , 99 S.E.2d 517 , 1957 Ga. App. LEXIS 516 (1957).

De novo investigation. —

Appeal under section places matter in superior court for de novo investigation under § 5-3-29 . Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972).

When such appeal is made, it is a de novo investigation for subject matter appealed. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 , 1947 Ga. App. LEXIS 399, 1947 Ga. App. LEXIS 400 (1947).

Trial in superior court of statutory appeals is had without reference to evidence introduced in former trial, and is a de novo investigation; when a case is on appeal, any amendment, whether in matter of form or substance, may be made which could have been made while case was in primary court. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

Appeal of an application for a year’s support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820 , 357 S.E.2d 159 , 1987 Ga. App. LEXIS 1810 (1987).

Case appealed must be tried anew. —

It is not the province of superior court on such appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issue anew and pass original judgments on questions involved as if there had been no previous trial. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972).

General Consideration

Editor’s note. —

In light of the similarity of the statutory provisions, decisions under former Code Section 5-3-1, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Right to appeal to superior court is fixed by statute, and lies only from bodies or tribunals when appeal therefrom is provided by statute. Georgia Power Co. v. Friar, 47 Ga. App. 675 , 171 S.E. 210 , 1933 Ga. App. LEXIS 598 (1933), aff'd, 179 Ga. 470 , 175 S.E. 807 , 1934 Ga. LEXIS 312 (1934).

When amount claimed is over $50.00, the law confers right to appeal to superior court. Humphrey v. Johnson, 13 Ga. App. 557 , 79 S.E. 530 , 1913 Ga. App. LEXIS 255 (1913).

When amount in controversy is $50.00 or less, appeal will not lie as matter of right. Gay v. Brown, 45 Ga. App. 862 , 166 S.E. 374 , 1932 Ga. App. LEXIS 741 (1932).

Party may appeal to jury in superior court. Hendrix & McBurney v. Mason, 70 Ga. 523 , 1883 Ga. LEXIS 367 (1883); Southern Express Co. v. Hilton, 94 Ga. 450 , 20 S.E. 126 , 1894 Ga. LEXIS 120 (1894); Wood v. McCrary, 107 Ga. 345 , 33 S.E. 395 , 1899 Ga. LEXIS 67 (1899).

Parties may appeal by consent from justice court to superior court when amount involved is sufficient to authorize appeal. Smith v. Rawson, 61 Ga. 208 , 1878 Ga. LEXIS 76 (1878).

General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724 , 44 S.E.2d 896 , 1947 Ga. LEXIS 538 (1947).

Sections dealing with appeals to superior court from inferior courts are in pari materia. —

In case of appeal from ordinary’s court (now probate court) to superior court, the various sections relating to appeals to superior court from justice’s courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

Assumption of failure in whole or part to obtain relief sought. —

Right given to party to appeal from judgment in justice’s court is predicated on assumption that by judgment complained of appellant has failed entirely in suit or has failed to recover full amount sued for, as to hold otherwise would be to run counter to the well-settled principle that no one will be heard to complain of a judgment unless one has been injured or is aggrieved thereby. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361 , 26 S.E.2d 695 , 1943 Ga. LEXIS 352 (1943).

Party not aggrieved by judgment of trial court is without legal right to except thereto, since the party has of it no just cause of complaint. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361 , 26 S.E.2d 695 , 1943 Ga. LEXIS 352 (1943).

When party is aggrieved by judgment or decree. —

Substance of judgment, and not opinion of party, determines whether or not one is aggrieved. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361 , 26 S.E.2d 695 , 1943 Ga. LEXIS 352 (1943).

Party is aggrieved by a judgment or decree when it operates on one’s rights of property, or bears directly upon one’s interest. Walker v. Hartford Accident & Indem. Co., 196 Ga. 361 , 26 S.E.2d 695 , 1943 Ga. LEXIS 352 (1943).

Appeal from confession of judgment. —

Appeal can be made from confession of judgment without formal entering of judgment by justice. Huff v. Whitner, Manry & Co., 8 Ga. App. 25 , 68 S.E. 463 , 1910 Ga. App. LEXIS 9 (1910).

Parallel between appeal granted by section and other sections. —

By comparing sections, which are in pari materia, substantially the same procedure is provided in cases of appeal from award of assessors in condemnation proceeding to superior court as is provided in cases of appeal from justice’s court to superior court. State Hwy. Bd. v. Long, 61 Ga. App. 173 , 6 S.E.2d 130 , 1939 Ga. App. LEXIS 250 (1939).

Applicability

1.In General

Defendant may appeal though defenses stricken in county court. —

When suit is brought in county court for sum exceeding $50.00 in amount, which results, upon trial, in judgment for plaintiff, the defendant may enter appeal to superior court even though the defenses interposed by him in county court were stricken. Helmly v. Davis, 100 Ga. 493 , 28 S.E. 231 , 1897 Ga. LEXIS 90 (1897).

Appeal of wrongfully dismissed case. —

If case is dismissed when judgment for the defendant should have been entered, the plaintiff may appeal. Hollis v. Doster, 113 Ga. 115 , 38 S.E. 308 , 1901 Ga. LEXIS 174 (1901).

Section inapplicable to proceeding in county court to evict intruder; certiorari is proper remedy. Rigell v. Sirmans, 123 Ga. 455 , 51 S.E. 381 , 1905 Ga. LEXIS 492 (1905).

2.Distinction Between Appeal and Certiorari

General rules. —

Certiorari will not lie when there are issues of fact involved. McDonald v. Dickens, 58 Ga. 77 , 1877 Ga. LEXIS 12 (1877).

In cases of law, certiorari is proper remedy, in cases of fact, appeal is proper. Rogers v. Bennett, 78 Ga. 707 , 3 S.E. 660 , 1887 Ga. LEXIS 57 (1887).

If in case in county court, amount in controversy is more than $50.00 and case involves question of fact, appeal is proper remedy; if no question of fact is involved, but case rests solely on questions of law, certiorari is proper remedy. Small v. Sparks & Son, 69 Ga. 745 , 1882 Ga. LEXIS 326 (1882).

Right of appeal presupposes issue to be tried by jury. Small v. Sparks & Son, 69 Ga. 745 , 1882 Ga. LEXIS 326 (1882).

Distinction between statutory appeal and appeal by writ of error. —

Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. The appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, when the final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. The trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934).

Garnishment proceedings. —

Certiorari is proper remedy for error in judgment in proceeding seeking strengthening of attachment or garnishment bond. Gregory v. Clark, 73 Ga. 542 , 1884 Ga. LEXIS 169 (1884).

Amount Claimed

Amount claimed determines right of appeal. Gay v. Brown, 45 Ga. App. 862 , 166 S.E. 374 , 1932 Ga. App. LEXIS 741 (1932).

Where no amount claimed, appeal to superior court will not lie. Humphrey v. Johnson, 13 Ga. App. 557 , 79 S.E. 530 , 1913 Ga. App. LEXIS 255 (1913).

It is amount claimed, and not amount recovered, which determines right of party to appeal. Taylor v. Blasingame, 73 Ga. 111 , 1884 Ga. LEXIS 42 (1884); Helmly v. Davis, 100 Ga. 493 , 28 S.E. 231 , 1897 Ga. LEXIS 90 (1897).

Pleadings control in determining amount claimed. Singer Mfg. Co. v. Martin, 75 Ga. 570 , 1885 Ga. LEXIS 181 (1885); Simmons v. Allen, 26 Ga. App. 725 , 106 S.E. 811 , 1921 Ga. App. LEXIS 614 (1921).

Method of determining amount claimed. —

Amount claimed is determined by adding principal and interest together. Bell v. Morton, 68 Ga. 831 , 1882 Ga. LEXIS 152 (1882); Magarahan v. Wright & Lamkin, 83 Ga. 773 , 10 S.E. 584 , 1889 Ga. LEXIS 155 (1889).

Interest. —

In determining amount claimed, interest cannot be waived. McDonald v. Dickens, 58 Ga. 77 , 1877 Ga. LEXIS 12 (1877); Howard v. Chamberlin, Boynton & Co., 64 Ga. 686 (1880).

Reductions at trial cannot be considered in determining amount claimed. Bell v. Davis, 93 Ga. 233 , 18 S.E. 647 , 1893 Ga. LEXIS 400 (1893).

Amount of execution or value of property. —

In claim cases, amount of execution or value of property determines right of appeal. Turman v. Cargill & Daniel, 54 Ga. 663 , 1875 Ga. LEXIS 292 (1875); Napier Bros. v. Woodall, 118 Ga. 830 , 45 S.E. 684 , 1903 Ga. LEXIS 726 (1903); Adkins v. Bennett, 138 Ga. 118 , 74 S.E. 838 , 1912 Ga. LEXIS 214 (1912).

Reasonable attorney’s fees, recoverable by statute, are considered. —

In suit in justice’s court, where plaintiff, as beneficiary in life insurance policy, brought suit against insurer to recover in sum of $30.00, representing amount due plaintiff under terms of policy, $7.50 representing 25 percent of amount sued for as damages, and $50.00 representing reasonable attorney’s fees as provided in by statute which authorizes recovery for damages and attorney’s fees when an insurer has acted in bad faith in failing to pay amount due under policy within required time, amount sued for and claimed in suit was in excess of $50.00. Tate v. Industrial Life & Health Ins. Co., 58 Ga. App. 305 , 198 S.E. 303 , 1938 Ga. App. LEXIS 246 (1938).

Costs of suit may be added to amount claimed. —

When amount claimed by the plaintiff in garnishment proceedings was $49.60 and $2.75 costs in suit in justice court and judgment was obtained against the defendant, amount in controversy between garnishees, appellants, plaintiff, and appellee, was $52.35, and the superior court judge erred in dismissing the appeal as being one in controversy involving $50.00 or less. Gay v. Brown, 45 Ga. App. 862 , 166 S.E. 374 , 1932 Ga. App. LEXIS 741 (1932).

Attachment proceedings. —

Appeal lies when attachment for more than $50.00 is levied on property worth less than $50.00, followed by a verdict for less than that amount. Padgett v. Ford, 117 Ga. 508 , 43 S.E. 1002 , 1903 Ga. LEXIS 278 (1903).

Jurisdiction

Appeal imparts same jurisdiction as was possessed by county court. —

In trying appeal from county court, superior court can reach no result which could not have been reached in county court had case been finally disposed of there; hence on trial of such appeal the superior court cannot entertain an equitable petition offered by the defendant as an amendment to a plea of general issue, which petition contemplates and prays for relief which only a court of equity, or a court of law exercising full equity powers, could administer, such as rescission of contracts, cancellation of promissory notes or injunction. Goodman v. Little, 213 Ga. 178 , 97 S.E.2d 567 , 1957 Ga. LEXIS 333, transferred, 96 Ga. App. 110 , 99 S.E.2d 517 , 1957 Ga. App. LEXIS 516 (1957).

In trying appeal from county court, superior court can deal with no question of merits except as could have been raised in county court, and can render no final judgment except such as county court had jurisdiction to render. Greer v. Burnam, 69 Ga. 734 , 1882 Ga. LEXIS 314 (1882); Hufbauer v. Jackson, 91 Ga. 298 , 18 S.E. 159 , 1892 Ga. LEXIS 587 (1892).

Amendability of summons on appeal. —

When case is on appeal in superior court from justice’s court, any amendment of summons whether in matter of form or of substance, may be made, which could have been made while case was pending in primary court; the only restriction on either court is that there must be enough to amend by. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

Procedural Issues

Appellant recognizes validity of summons and judgment by entering appeal to superior court. Twitty v. Bower, 84 Ga. 751 , 11 S.E. 354 , 1890 Ga. LEXIS 337 (1890).

Judgment appealed from need not be set forth in appeal. Georgia, F. & A. Ry. v. Penn Tobacco Co., 9 Ga. App. 840 , 72 S.E. 443 , 1911 Ga. App. LEXIS 372 (1911).

Defenses allowed by oral plea must be reduced to writing on appeal. —

In justice’s court, which is not a court of record, many defenses are allowed to be made by oral plea, and on appeal to superior court these defenses are required to be reduced to writing before case proceeds to trial. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

New trial is upon prior pleadings and defenses subject to amendment. —

In appeal from county court to superior court, trial of the case is a de novo proceeding, but it by no means follows that pleadings and defenses in the case are to begin over again in the new trial; on the contrary, the new trial is had on papers connected with the case when judgment was rendered, subject to proper amendment. Wofford v. Vandiver, 72 Ga. App. 623 , 34 S.E.2d 579 , 1945 Ga. App. LEXIS 654 (1945).

Motion to dismiss summons may be made in superior court after appeal for de novo trial following trial in justice court. Furman v. Smith, 106 Ga. App. 742 , 128 S.E.2d 641 , 1962 Ga. App. LEXIS 837 (1962).

General Consideration

Purpose of payment. —

Payments of costs in order to carry appeal is primarily intended to protect court officers. Hilderbrand v. Housing Auth., 109 Ga. App. 297 , 136 S.E.2d 24 , 1964 Ga. App. LEXIS 858 (1964).

Former Civil Code 1895, § 4464 (see O.C.G.A. § 5-3-24 ) formed an exception to former Civil Code 1895, § 4458 (see O.C.G.A. § 5-3-22 ). Bryson v. Scott, 111 Ga. 196 , 36 S.E. 619 , 1900 Ga. LEXIS 514 (1900).

Costs

Costs within meaning of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22 ) include all costs accruing in case up to entry of appeal. Shingler v. Furst, 52 Ga. App. 39 , 182 S.E. 72 , 1935 Ga. App. LEXIS 23 (1935).

Failure of clerk to exact costs when the clerk had recorded appeal will not operate as dismissal. Crawford v. Cate, 20 Ga. 69 , 1856 Ga. LEXIS 13 (1856); Lyner v. Jackson, 20 Ga. 773 , 1856 Ga. LEXIS 147 (1856); Fain v. Fain, 179 Ga. App. 285 , 346 S.E.2d 96 , 1986 Ga. App. LEXIS 1893 (1986).

“Direct” means to give an order or command, not merely to advise or notify. Therefore, when the appellant was notified by the probate court of the obligation to pay court costs, but was not directed to pay costs by the court, the appellant’s appeal should not have been dismissed for nonpayment of costs. Fain v. Fain, 179 Ga. App. 285 , 346 S.E.2d 96 , 1986 Ga. App. LEXIS 1893 (1986).

Successful appellant cannot secure a refund of costs. Abrams v. Lang, Sons, 60 Ga. 218 , 1878 Ga. LEXIS 426 (1878).

When an appeal is withdrawn, judgment may be entered for costs but not amount due on execution. Bryan v. Simpson, 92 Ga. 307 , 18 S.E. 547 , 1893 Ga. LEXIS 63 (1893).

In a dispossessory proceeding, because the case did not involve the tenant’s failure to pay costs in the magistrate court, and, instead, involved the tenant’s failure either to pay the filing fee owed in superior court or file an affidavit of poverty in that court, O.C.G.A. § 5-3-22 provided no basis for affirming the trial court’s order denying the tenant’s application to proceed in forma pauperis. Freeman v. The Park at Hairston Apartments, 341 Ga. App. 321 , 800 S.E.2d 21 , 2017 Ga. App. LEXIS 191 (2017).

Supersedeas Bond

Supersedeas bond not notice of appeal. —

While a notice of appeal serves as supersedeas unless a bond is ordered by the court, a supersedeas bond is not, of itself, a notice of appeal. A bond may be required for security as a prerequisite to bringing an appeal but the bond does not, itself, commence the appeal. Sharpe v. State, 198 Ga. App. 381 , 401 S.E.2d 586 , 1991 Ga. App. LEXIS 59 (1991).

Failure to file supersedeas bond is no ground for dismissing appeal. Thornton v. Burson, 151 Ga. App. 456 , 260 S.E.2d 388 , 1979 Ga. App. LEXIS 2571 (1979).

Failure to file supersedeas bond is no ground for dismissing appeal, even when the superior court finds such failure is willful. Hawn v. Chastain, 246 Ga. 723 , 273 S.E.2d 135 , 1980 Ga. LEXIS 1275 (1980), vacated, 157 Ga. App. 119 , 276 S.E.2d 911 , 1981 Ga. App. LEXIS 1650 (1981).

Effect of failure to file supersedeas bond. —

Failure to file supersedeas bond simply means that judgment of trial court may be enforced. Thornton v. Burson, 151 Ga. App. 456 , 260 S.E.2d 388 , 1979 Ga. App. LEXIS 2571 (1979).

Intent of General Assembly that appeals not be dismissed for failure to post supersedeas bonds is clearly shown by subsection (a), which expressly authorizes dismissal of an appeal for nonpayment of costs accrued in a lower tribunal after the appellant has been directed by superior court to pay such costs. Hawn v. Chastain, 246 Ga. 723 , 273 S.E.2d 135 , 1980 Ga. LEXIS 1275 (1980), vacated, 157 Ga. App. 119 , 276 S.E.2d 911 , 1981 Ga. App. LEXIS 1650 (1981).

No authorization for dismissal for failure to file supersedeas bond. —

Ga. L. 1966, p. 609, § 41 (see O.C.G.A. § 9-11-41(b) not authorize dismissal of an appeal to superior court for failure to comply with order requiring supersedeas bond pursuant to subsection (b) of former Code 1933, § 6-105 (see O.C.G.A. § 5-3-22 ). Hawn v. Chastain, 246 Ga. 723 , 273 S.E.2d 135 , 1980 Ga. LEXIS 1275 (1980), vacated, 157 Ga. App. 119 , 276 S.E.2d 911 , 1981 Ga. App. LEXIS 1650 (1981).

Dispossessory actions. —

Subsection (b) of O.C.G.A. § 5-3-22 is applicable to appeals relating to dispossessory actions. Walker v. Crane, 216 Ga. App. 765 , 455 S.E.2d 855 , 1995 Ga. App. LEXIS 279 (1995).

General Consideration

All parties are brought up under this section whether the parties have appealed or not. Whether the parties have appealed or not the parties all have the right to appear and prosecute or defend as the case may be. Hanie v. Taylor, 4 Ga. App. 545 , 61 S.E. 1054 , 1908 Ga. App. LEXIS 472 (1908); Hunt v. Henderson, 178 Ga. App. 688 , 344 S.E.2d 470 , 1986 Ga. App. LEXIS 1711 (1986).

Jury trial in superior court where factual issues involved. —

An appeal is a de novo investigation, and in the superior court the appellant cannot be deprived of the right of trial by jury if questions of fact are involved. Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213 , 119 S.E. 644 , 1923 Ga. LEXIS 230 (1923).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing. Goodman v. Little, 213 Ga. 178 , 97 S.E.2d 567 , 1957 Ga. LEXIS 333, transferred, 96 Ga. App. 110 , 99 S.E.2d 517 , 1957 Ga. App. LEXIS 516 (1957).

O.C.G.A. § 5-3-29 provides that on appeal from a probate court all competent evidence shall be admissible in the trial de novo in the superior court and the whole record shall be brought up from below. Pendley v. Pendley, 251 Ga. 30 , 302 S.E.2d 554 , 1983 Ga. LEXIS 694 (1983).

Appeal of the magistrate court judgment to the superior court is a de novo investigation. Long v. Greenwood Homes, Inc., 285 Ga. 560 , 679 S.E.2d 712 , 2009 Ga. LEXIS 388 (2009).

Appeal from judgment allowing or refusing homestead. —

When appeal is taken from judgment of ordinary, (now judge of probate court) in allowing or refusing homestead, whole case is brought up by appeal. Lynch v. Pace, 40 Ga. 173 , 1869 Ga. LEXIS 51 (1869); Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 , 1871 Ga. LEXIS 230 (1871).

Same rule applies in attachment. J. W. McGarrity & Co. v. Thomas, 9 Ga. App. 606 , 71 S.E. 948 , 1911 Ga. App. LEXIS 253 (1911).

Case on appeal from court of ordinary (now probate court) must be tried anew, as if no trial had been had. Hall v. First Nat'l Bank, 85 Ga. App. 498 , 69 S.E.2d 679 , 1952 Ga. App. LEXIS 764 (1952); Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972); Mathews v. Mathews, 136 Ga. App. 833 , 222 S.E.2d 609 , 1975 Ga. App. LEXIS 1503 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123 , 50 L. Ed. 2 d 114, 1976 U.S. LEXIS 2708 (1976).

Hearing required unless waived. —

Although the Superior court is not required to conduct a hearing concerning the merits of the Department of Public Safety’s decision to revoke the driver’s license of an aggrieved party if the parties waive their right to be heard, the superior court cannot avoid the dictates of O.C.G.A. §§ 5-3-29 and 9-10-2 by simply failing to hold a hearing. Bowman v. Parrot, 200 Ga. App. 405 , 408 S.E.2d 115 , 1991 Ga. App. LEXIS 1009 (1991), cert. denied, No. S91C1383, 1991 Ga. LEXIS 546 (Ga. Sept. 6, 1991).

Superior court not to review rulings of probate court. —

It is not province of superior court on appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issues anew and pass original judgments on questions involved as if there had been no previous trial. Hall v. First Nat'l Bank, 85 Ga. App. 498 , 69 S.E.2d 679 , 1952 Ga. App. LEXIS 764 (1952); Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972); Mathews v. Mathews, 136 Ga. App. 833 , 222 S.E.2d 609 , 1975 Ga. App. LEXIS 1503 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123 , 50 L. Ed. 2 d 114, 1976 U.S. LEXIS 2708 (1976).

Superior court erred in setting aside the year’s support award for failure to provide evidence of an amount sufficient to constitute a year’s support because the only issue properly before the court on appeal under O.C.G.A. § 5-3-29 was whether an objection had been made to the petitioner’s petition for year’s support. Because the superior court found that no objection had been made to the petition for year’s support, the court erred in placing the burden of proof to show the amount sufficient for year’s support upon the petitioner. The language of O.C.G.A. § 53-3-7(c) indicates that the petitioner shouldered that burden of proof only once an objection is made. Garren v. Garren, 316 Ga. App. 646 , 730 S.E.2d 123 , 2012 Ga. App. LEXIS 625 (2012).

Distinction between statutory appeal on merits and appeal by writ of error. —

Statutory appeal providing for another trial in appellate court on merits of case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding inquiry is into correctness of judgment upon pleading and evidence before trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies the result to the trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320 , 176 S.E. 21 , 1934 Ga. LEXIS 280 (1934).

On appeal, it is action and not judgment that is examined. Abrams v. Lang, Sons, 60 Ga. 218 , 1878 Ga. LEXIS 426 (1878).

Appeal under former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2 ) placed the matter in the superior court for a de novo investigation under former Code 1933, § 6-501 (see O.C.G.A. § 5-3-2 9). Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972).

Relinquishment of de novo appeal to court of appeals. —

Defendant, by moving to dismiss the defendant’s de novo appeal from a probate court to a superior court for failure to hold a timely trial under O.C.G.A. § 5-3-29 , voluntarily relinquished his right to a de novo appeal to the court of appeals, and the defendant’s conviction and sentence imposed by the probate court were, therefore, reinstated. Bailey v. State, 184 Ga. App. 890 , 363 S.E.2d 172 , 1987 Ga. App. LEXIS 2400 (1987).

Effect of Appeal on Inferior Court’s Judgment

Judgment appealed from and opposite judgment in superior court might both be free of error. —

It is quite obvious that, with such latitude as to evidence as is given by this section, the judgment appealed from and a directly opposite judgment in appellate court, might both be free from error — each of them might be absolutely correct on the facts submitted, and the law applicable thereto. Abrams v. Lang, Sons, 60 Ga. 218 , 1878 Ga. LEXIS 426 (1878).

Appeal from court of ordinary (now probate court) suspends, but does not vacate judgment. Snell v. Lopez, 91 Ga. App. 552 , 86 S.E.2d 363 , 1955 Ga. App. LEXIS 806 (1955).

No waiver of right to trial by jury. —

Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30 , the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow’s request. Montgomery v. Montgomery, 287 Ga. App. 77 , 650 S.E.2d 754 , 2007 Ga. App. LEXIS 878 (2007).

Justice’s court judgment remains operative, but incapable of enforcement pending appeal. Tilley v. King, 193 Ga. 602 , 19 S.E.2d 281 , 1942 Ga. LEXIS 435 (1942).

Judgment against joint defendant is suspended pending appeal of nonsuit. —

As to other joint defendant when the maker and endorser of a promissory note are jointly sued and judgment rendered against the endorser and nonsuit as to maker, judgment against an endorser is suspended until rendition of the case on appeal. Turnell v. Carter, 5 Ga. App. 847 , 64 S.E. 114 , 1909 Ga. App. LEXIS 150 (1909).

When appellee is successful on appeal, lien of judgment is binding from date originally rendered. —

When on appeal from judgment in justice’s court appellee is successful, lien of judgment will be taken as binding from date of the judgment’s original rendition, and entitled to superiority over subsequently rendered judgment, notwithstanding provisions of former Code 1933, § 110-508 (see O.C.G.A. § 9-12-88 ). Tilley v. King, 193 Ga. 602 , 19 S.E.2d 281 , 1942 Ga. LEXIS 435 (1942).

Appeal from a decision of a magistrate court is “a de novo investigation,” in which the magistrate court’s decision on the merits of the claim has no bearing. Howe v. Roberts, 259 Ga. 617 , 385 S.E.2d 276 , 1989 Ga. LEXIS 449 (1989).

Scope of Appeal

On appeal, either party is entitled to be heard on whole merits of case. Mathews v. Mathews, 136 Ga. App. 833 , 222 S.E.2d 609 , 1975 Ga. App. LEXIS 1503 (1975), cert. denied, 429 U.S. 844, 97 S. Ct. 123 , 50 L. Ed. 2 d 114, 1976 U.S. LEXIS 2708 (1976).

Duty of superior court upon overruling objections to petition. —

If judge of superior court overrules demurrer (now motion to dismiss) and objections to petition to set aside judgment of court of ordinary (now probate court) it is the judge’s duty to try issues made by such petition and defensive pleadings. Hall v. First Nat'l Bank, 85 Ga. App. 498 , 69 S.E.2d 679 , 1952 Ga. App. LEXIS 764 (1952).

Appeal imparts same jurisdiction as was possessed by inferior court. —

When a guardian seeks compensation for unsuccessful effort by the guardian, as attorney at law and in apparent good faith, to have order of court of ordinary (now probate court) granting encroachment upon estates of the guardian’s wards modified, set aside, or vacated, the superior court on de novo appeal is vested with same discretion in matter that court of ordinary had. Whitehurst v. Singletary, 77 Ga. App. 811 , 50 S.E.2d 80 , 1948 Ga. App. LEXIS 650 (1948).

Superior court, on appeal from court of ordinary, (now probate court) has no broader jurisdiction than that of court of ordinary. Snell v. Lopez, 91 Ga. App. 552 , 86 S.E.2d 363 , 1955 Ga. App. LEXIS 806 (1955).

Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178 , 97 S.E.2d 567 , 1957 Ga. LEXIS 333, transferred, 96 Ga. App. 110 , 99 S.E.2d 517 , 1957 Ga. App. LEXIS 516 (1957).

Appeal from court of ordinary (now probate court) brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 , 1972 Ga. App. LEXIS 1432 (1972).

Rulings of inferior court as to law and facts may be adjudicated de novo on appeal. Garrison v. McGuire, 114 Ga. App. 665 , 152 S.E.2d 624 , 1966 Ga. App. LEXIS 888 (1966).

Issues allowable on appeal. —

Any issue that may be made before tribunal originally hearing case may be made on appeal thereof to superior court when such appeal is a de novo investigation. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420 , 53 S.E.2d 921 , 1949 Ga. App. LEXIS 663 (1949).

Evidence which may be introduced. —

Appeal to superior court from probate court is a de novo investigation, and competent evidence may be heard which was not introduced in probate court. Dukes v. Joyner, 234 Ga. 526 , 216 S.E.2d 822 , 1975 Ga. LEXIS 1177 (1975).

Purpose of O.C.G.A. § 5-3-29 is to provide the parties to an appeal a de novo hearing, and “all competent evidence” may be introduced in the superior court regardless of whether it was submitted below. Lee v. Wainwright, 256 Ga. 478 , 350 S.E.2d 238 , 1986 Ga. LEXIS 928 (1986).

An appeal from the magistrate court was a de novo proceeding in which either party could adduce evidence additional to that originally presented in the magistrate court. Stamps v. Nelson, 290 Ga. App. 277 , 659 S.E.2d 697 , 2008 Ga. App. LEXIS 299 (2008).

Restriction on presentation of new matters on appeal. —

While an appeal to the superior court from the probate court is a de novo investigation, the trial in the superior court is not a trial without limitation but is a new trial in which only the matter presented to the court below can be relitigated. Williams v. Calloway, 171 Ga. App. 286 , 319 S.E.2d 500 , 1984 Ga. App. LEXIS 2169 (1984).

Suit on appeal is subject to attacks upon jurisdiction which could have been made below. —

In case pending in superior court on appeal from judgment of justice of peace, defendant may plead any defense, including plea to jurisdiction of justice’s court, which the defendant could have pled in that court, irrespective of whether, upon trial of case therein, this defense was pled. Smith v. Atlanta Mut. Ins. Co., 42 Ga. App. 254 , 155 S.E. 535 , 1930 Ga. App. LEXIS 318 (1930).

Since appeal from court of ordinary (now probate court) to superior court is a de novo proceeding, any defense or attack upon jurisdiction which could have been made in the court of ordinary can be made in superior court on appeal. Cromer v. Chambers, 104 Ga. App. 196 , 121 S.E.2d 397 , 1961 Ga. App. LEXIS 640 (1961).

Superior court may hear and sustain demurrer (now motion to dismiss) previously heard and overruled in county court. Bowman v. Bowman, 79 Ga. App. 240 , 53 S.E.2d 244 , 1949 Ga. App. LEXIS 628 (1949).

Application of section to appeal from dismissal by probate court for want of jurisdiction. —

See Touchton v. Stewart, 222 Ga. 455 , 150 S.E.2d 643 , 1966 Ga. LEXIS 516 (1966).

Striking defendant on appeal discharges defendant from any liability in cause of action. —

As hearing is de novo, striking defendant on appeal against whom judgment was rendered in justice’s court operates to discharge such defendant from any liability in cause of action. Hanie v. Taylor, 4 Ga. App. 545 , 61 S.E. 1054 , 1908 Ga. App. LEXIS 472 (1908).

City charter provision permitting appeals from tax assessments to superior court. —

When city charter provides that a tax assessment may be appealed from taxing authorities of city to superior court, there to be disposed of as other appeal cases, such appeal is a de novo investigation and brings up the whole record, to be tried anew in superior court. City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420 , 53 S.E.2d 921 , 1949 Ga. App. LEXIS 663 (1949).

Procedural Issues

Generally, same procedural rules apply in de novo review as in trials of other civil cases. Brown v. Frachiseur, 247 Ga. 463 , 277 S.E.2d 16 , 1981 Ga. LEXIS 751 (1981).

Defendant, though not joining in appeal, may make any timely and appropriate amendments to plea or answer already entered. Murray v. Marshall, 106 Ga. 522 , 32 S.E. 634 , 1899 Ga. LEXIS 720 (1899).

No greater duty is placed upon appellant to bring case to trial than upon appellee. While it is true that appellant is the moving party as far as appeal is concerned, once appeal and supporting record is docketed in superior court, it is entitled to de novo treatment. Etheridge v. Etheridge, 242 Ga. 101 , 249 S.E.2d 569 , 1978 Ga. LEXIS 1113 (1978).

Appeal must include certified judgment or record. —

When there is no certified judgment or record before the superior court as to judgment rendered by appeals board, appeal to superior court is incomplete. Fletcher v. Daniels, 211 Ga. 403 , 86 S.E.2d 232 , 1955 Ga. LEXIS 339 (1955).

Failure of magistrate to send up judgment rendered by the magistrate is no ground for dismissal. Pearce & Renfroe v. Renfroe Bros., 68 Ga. 194 , 1881 Ga. LEXIS 350 (1881).

Absence of party. —

Appeal, unlike an action, should not be dismissed because of absence of either party. Rousch v. Green, 2 Ga. App. 112 , 58 S.E. 313 , 1907 Ga. App. LEXIS 289 (1907).

Judgment on merits of affidavit of illegality does not preclude motion to dismiss affidavit on appeal. —

That plaintiff in fi. fa. went to trial in justice’s court on merits of affidavit of illegality, where judgment was rendered against illegality, did not preclude plaintiff in fi. fa. from making motion to dismiss affidavit of illegality on call of case in superior court, to which defendant had appealed. Norris v. Carter & Nelson, 32 Ga. App. 607 , 124 S.E. 144 , 1924 Ga. App. LEXIS 559 (1924).

Party may invoke summary judgment procedure in appeal to superior court. —

An appeal to superior court from court of ordinary (now probate court) is subject to established procedures for civil actions, thus entitling a party to invoke summary judgment procedure. Woodall v. First Nat'l Bank, 118 Ga. App. 440 , 164 S.E.2d 361 , 1968 Ga. App. LEXIS 1423 (1968).

Evidence of additional damages in trial de novo. —

When plaintiff appealed to the state court from a magistrate court’s decision dismissing the plaintiff’s claim and awarding damages to the defendant on the defendant’s counterclaim, and the plaintiff had notice of additional damages since the original counterclaim, the defendant could present evidence of additional damages of less than $5,000 relating to the defendant’s counterclaim, without formal amendment of the defendant’s pleadings. Jr. Mills Constr. v. Trichinotis, 223 Ga. App. 19 , 477 S.E.2d 141 , 1996 Ga. App. LEXIS 1041 (1996).

It is not reversible error to allow jury to know outcome in inferior court. Kelley v. Kelley, 129 Ga. App. 257 , 199 S.E.2d 399 , 1973 Ga. App. LEXIS 966 (1973).

Letting jury know what judgment was rendered below will not render the jury’s verdict void, although it is not a proper practice. Humphrey v. Johnson, 143 Ga. 703 , 85 S.E. 830 , 1915 Ga. LEXIS 585 (1915).

Summary judgment improperly granted to siblings on statute of limitations bar issue. —

Trial court erred in granting summary judgment to the siblings on the basis that the challenging sister’s claim against the estate seeking an accounting was time-barred because a question of fact remained as to whether the sister was on notice that they had claimed any estate property adversely to the sister; thus, a jury had to decide whether the 10-year bar of O.C.G.A. § 9-3-27(2) began to run before that time. In re Estate of Wade, 331 Ga. App. 535 , 771 S.E.2d 214 , 2015 Ga. App. LEXIS 197 (2015).

Reliance by jury upon record below in reaching the jury’s decision. —

Jury in superior court proceeding does not review and affirm or reverse rulings of probate judge, but hears all issues anew as if there had been no previous trial, and if the jury relies upon record below or allows the judgment below to influence the jury’s decision, reversible error is committed. Allmond v. Johnson, 153 Ga. App. 59 , 264 S.E.2d 544 , 1980 Ga. App. LEXIS 1674 (1980).

Summary judgment available in appeal from probate court’s award for support. —

Appeal of an application for a year’s support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820 , 357 S.E.2d 159 , 1987 Ga. App. LEXIS 1810 (1987).

Issues never raised on appeal. —

Upon a wife’s request for year’s support, because a son never presented argument or evidence to contest the amount sought by the wife, never sought a hearing on the amount, and failed to rebut the wife’s claim of entitlement to that support, the son’s claims of error on appeal from an order granting the wife summary judgment in the superior court lacked merit. In re Estate of Avery, 281 Ga. App. 904 , 637 S.E.2d 504 , 2006 Ga. App. LEXIS 1286 (2006).

General Consideration

Purpose of section. —

Purpose of this section is to inflict punishment and to compensate respondent for delay, costs, and vexation caused by frivolous appeal. Garrison v. Wilcoxson, 11 Ga. 154 , 1852 Ga. LEXIS 25 (1852); Adams v. Carnes, 111 Ga. 505 , 36 S.E. 597 , 1900 Ga. LEXIS 672 (1900); Hardy v. Truitt, 20 Ga. App. 529 , 93 S.E. 149 , 1917 Ga. App. LEXIS 960 (1917).

Exclusivity of remedy. —

O.C.G.A. § 5-3-31 does not provide the exclusive remedy for imposition of sanctions for appeals to the superior court; the statute applies only to cases of appeal wherein the jury returns a verdict for a sum of money. Osofsky v. Board of Mayor & Comm'rs, 237 Ga. App. 404 , 515 S.E.2d 413 , 1999 Ga. App. LEXIS 438 (1999).

To justify assessment of damages, appeal must be both frivolous and intended for delay. Gunnels v. Deavours, 57 Ga. 177 , 1876 Ga. LEXIS 65 (1876).

When appeal deemed for purpose of delay. —

Appeal is intended to delay only when entirely without merit and entered merely to postpone creditor in collection of debt. Clark v. Fee, 86 Ga. 9 , 12 S.E. 181 , 1890 Ga. LEXIS 168 (1890).

Appellant’s failure to submit evidence, by itself, is not conclusive of issue of intent to delay. Gilmore v. Wright, 20 Ga. 198 , 1856 Ga. LEXIS 36 (1856).

In determining whether appeal is frivolous and intended to delay, the jury must consider all evidence. Garrison v. Wilcoxson, 11 Ga. 154 , 1852 Ga. LEXIS 25 (1852).

Assessment of Damages

For determination by jury. —

Amount of damages (under subsection (a)) is for determination by jury, uninfluenced by opinion of court. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 , 1858 Ga. LEXIS 43 (1858).

Appropriate considerations in determining damages under section. —

See McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 , 1858 Ga. LEXIS 43 (1858).

Maximum award only in extreme cases. —

Only in extreme cases should 25 percent maximum damages be awarded. McMillan v. Lawrence, Smith & Whilden, 25 Ga. 189 , 1858 Ga. LEXIS 43 (1858).

Application

O.C.G.A. § 5-3-31 applies only to appeals which are de novo investigations. Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637 , 331 S.E.2d 46 , 1985 Ga. App. LEXIS 1911 (1985).

Section applicable only to cases when money verdicts are rendered. —

Inasmuch as provisions of section are necessarily applicable to those cases only in which money verdicts are rendered, the judgment cannot be enforced in claim cases. Adams v. Carnes, 111 Ga. 505 , 36 S.E. 597 , 1900 Ga. LEXIS 672 (1900).

Section applicable to appeal by garnishee. Davis v. Rhodes, 112 Ga. 106 , 37 S.E. 169 , 1900 Ga. LEXIS 52 (1900).

Section not applicable to appeal of Workers’ Compensation Board decisions. —

Provisions of O.C.G.A. § 5-3-31 providing for the award of attorney’s fees against a party bringing a frivolous appeal do not apply to appeals to the superior court of decisions of the Workers’ Compensation Board pursuant to O.C.G.A. § 34-9-105 . Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637 , 331 S.E.2d 46 , 1985 Ga. App. LEXIS 1911 (1985).

Appeal presenting bona fide contest or seeking ruling on open or doubtful question. —

If, after reviewing the whole matter the court believes that the plaintiff in error is presenting a bona fide contest over a colorable matter, though the plaintiff’s view of the law may not in fact be well founded, or that the plaintiff is seeking a ruling upon an open or doubtful question, damages will be refused. United States Fid. & Guar. Co. v. Blankenship Plumbing Co., 153 Ga. App. 335 , 265 S.E.2d 66 , 1980 Ga. App. LEXIS 1795 (1980).

Property alienated pending appeal is bound for payment of damages for frivolous appeal just as it is for payment of the rest of the amount of appeal judgment. Phillips v. Behn & Foster, 19 Ga. 298 , 1856 Ga. LEXIS 175 (1856).

General Consideration

Editor’s notes.

In light of the similarity of the provisions, decisions under former Code 1882, § 4157j; former Civil Code 1895, § 4149; former Civil Code 1910, § 4749; and former Code 1933, § 19-204 are included in the annotations for this Code section.

Section provides for review of decisions in exercise of judicial powers. —

Certiorari is a remedy whereby a litigant may have review of judgment or decision of inferior judicatory or a person exercising judicial powers. Richardson v. Rector, 134 Ga. App. 116 , 213 S.E.2d 488 , 1975 Ga. App. LEXIS 1927 (1975).

Legislative intent. —

It was the intention of the framers of the Constitution, and of the legislature, to provide writ of certiorari to superior courts to all persons dissatisfied with judgments of inferior judicatories and who desire to have those judgments corrected by the superior court. Cochran v. City of Rockmart, 242 Ga. 732 , 251 S.E.2d 259 , 1978 Ga. LEXIS 1343 (1978).

Right of certiorari is a constitutional right. Wrenn v. Bowden, 56 Ga. App. 713 , 193 S.E. 456 , 1937 Ga. App. LEXIS 209 (1937).

Constitutional as well as a statutory remedy. The legislature has provided by general law the manner and means for carrying out Ga. Const. 1976, Art. VI, Sec. IV, Para. V (see Ga. Const. 1983, Art. VI, Sec. I, Para. IV). Cochran v. City of Rockmart, 242 Ga. 732 , 251 S.E.2d 259 , 1978 Ga. LEXIS 1343 (1978).

Constitutional limitation on legislature’s power to provide for superior court review. —

Only power and authority given by the Georgia Constitution to superior courts to correct errors in inferior courts, is by writ of certiorari. The legislature has no power to provide other means than those prescribed in the Georgia Constitution for correcting errors in inferior courts by superior courts. Cochran v. City of Rockmart, 242 Ga. 732 , 251 S.E.2d 259 , 1978 Ga. LEXIS 1343 (1978).

Relationship to other laws. —

Plaintiff’s action seeking to set aside a reprimand from defendant city employer via writ of certiorari was remanded to state court because the cause of action was a uniquely state remedy for writ of certiorari to the state court, the resolution of which could turn on a conclusion that the conduct in question was in violation of federal law; the fact that the state court may look to federal law to determine whether to grant the relief sought by plaintiff did not confer subject matter jurisdiction on the federal court. Lockette v. City of Albany, No. 1:05-cv-39, 2005 U.S. Dist. LEXIS 17080 (M.D. Ga. Aug. 11, 2005).

Federal district court did not err in concluding that university professor’s procedural due process claim was actionable under 42 U.S.C. § 1983 because the district court reached the plausible conclusion that the state courts may have summarily dismissed the professor’s mandamus request without considering the merits thereof; while a writ of certiorari was not available to the professor upon the state court’s determination that the termination proceedings were purely administrative, the professor was still entitled to seek a writ of mandamus. Laskar v. Peterson, 771 F.3d 1291, 2014 U.S. App. LEXIS 21540 (11th Cir. 2014).

When errors complained of are sufficient to authorize certiorari, it should not be refused. —

When errors complained of in petition for certiorari were sufficient in law to have authorized the judge to have sanctioned certiorari under former Code 1868, §§ 3977 and 3980 (see O.C.G.A. §§ 5-4-1 and 5-4-3 ), it was error to refuse to do so. McCardle v. Fogarty, 41 Ga. 626 , 1871 Ga. LEXIS 159 (1871).

If there is specific remedy by certiorari, remedy of mandamus does not exist. Hayes v. Brown, 205 Ga. 234 , 52 S.E.2d 862 , 1949 Ga. LEXIS 335 (1949).

Writ of certiorari as full and adequate remedy at law. —

Writ of certiorari ordinarily furnishes a full and adequate remedy at law for correction of errors in decisions by municipal corporations, courts, or councils, rendered in exercise of judicial powers; so that even though a property right may be primarily involved in such manner as would authorize an injured party to resort to equity, the injured party is not entitled to claim such relief, when the injured party has already appeared before municipal judicatory, and that body has rendered an adverse decision. Ballard v. Mayor of Carrollton, 194 Ga. 489 , 22 S.E.2d 81 , 1942 Ga. LEXIS 608 (1942); Wilson v. Latham, 227 Ga. 530 , 181 S.E.2d 830 , 1971 Ga. LEXIS 762, cert. denied, 404 U.S. 955, 92 S. Ct. 312 , 30 L. Ed. 2 d 272, 1971 U.S. LEXIS 431 (1971); Wallace v. Board of Regents of Univ. Sys. of Ga., 967 F. Supp. 1287, 1997 U.S. Dist. LEXIS 9297 (S.D. Ga. 1997).

Payment of fine imposed by inferior court generally precludes certiorari. —

Defendant who has paid fine imposed by police court, with alternative of imprisonment, cannot, after paying such fine, prosecute writ of error to review judgment, unless fine was paid under protest and under duress. Ellett v. City of College Park, 135 Ga. App. 269 , 217 S.E.2d 374 , 1975 Ga. App. LEXIS 1643 (1975).

Writ of certiorari from justice’s court lies only after final determination of case. —

Writ of certiorari does not lie from decision of justice of peace, in case pending in justice’s court, until after final determination of case in which decision was made. Felker v. Freeman, 46 Ga. App. 767 , 169 S.E. 247 , 1933 Ga. App. LEXIS 235 (1933).

Judgment of justice of peace refusing to allow amendment to petition is not final determination. Felker v. Freeman, 46 Ga. App. 767 , 169 S.E. 247 , 1933 Ga. App. LEXIS 235 (1933).

Review of recorder’s court decisions. —

Proper method for obtaining review of a decision of a recorder’s court is either by direct appeal to the superior court, in the case of traffic violations, or by application for certiorari to the superior court. Franklin v. Recorder's Court, 174 Ga. App. 498 , 330 S.E.2d 429 , 1985 Ga. App. LEXIS 1857 (1985).

The proper procedure for appealing decisions from a county recorder’s court is by certiorari to the superior court. Smith v. Gwinnett County, 246 Ga. App. 865 , 542 S.E.2d 616 , 2000 Ga. App. LEXIS 1391 (2000).

Review limited to record of hearing below. —

Review under O.C.G.A. § 5-4-1 is limited to matters raised in the record of the hearing below. Baxter v. Fulton-DeKalb Hosp. Auth., 764 F. Supp. 1510, 1991 U.S. Dist. LEXIS 7207 (N.D. Ga. 1991).

Certiorari available irrespective of questions or amount involved. —

After verdict has been rendered by jury in justice’s court, certiorari is available to party dissatisfied, in all cases, irrespective of character of questions involved or amount in controversy. Brown & Bigelow v. Parian Paint Co., 4 Ga. App. 632 , 62 S.E. 95 , 1908 Ga. App. LEXIS 495 (1908) (decided under former Civil Code 1895, § 4149).

Verdict, not judgment, is reviewed on certiorari. Western & A.R.R. v. Carson, 70 Ga. 388 , 1883 Ga. LEXIS 343 (1883) (decided under former Code 1882, § 4157j).

Certiorari will not lie where appeal to jury in superior court has been entered. Miller v. Hensley, 65 Ga. 556 , 1880 Ga. LEXIS 256 (1880) (decided under former Ga. L. 1878-79, p. 142, § 1); Boroughs v. White & Stone, 69 Ga. 841 , 1883 Ga. LEXIS 126 (1883) (decided under former Code 1882, § 4157j); Neal v. Fox, 114 Ga. 164 , 39 S.E. 860 , 1901 Ga. LEXIS 620 (1901) (decided under former Civil Code 1895, § 4149).

Certiorari may be refused when evidence supports verdict. Stewart v. Murray, 14 Ga. App. 438 , 81 S.E. 382 , 1914 Ga. App. LEXIS 286 (1914) (decided under former Civil Code 1910, § 4749).

Certiorari may be refused although preponderance of evidence may be in favor of defendant. Mitchell v. Bennett, 17 Ga. App. 657 , 87 S.E. 1092 , 1916 Ga. App. LEXIS 838 (1916) (decided under former Civil Code 1910, § 4749).

Answer must show that verdict was rendered. Southern Ry. v. Chestnut Mt. Merchandise Co., 1 Ga. App. 731 , 58 S.E. 247 , 1907 Ga. App. LEXIS 93 (1907) (decided under former Civil Code 1895, § 4149).

Answer’s failure to show that verdict was rendered will result in dismissal. Manning v. Mayor of Gainesville, 125 Ga. 239 , 53 S.E. 1002 , 1906 Ga. LEXIS 107 (1906) (decided under former Civil Code 1895, § 4149).

Voluntary dismissal of request for certiorari. —

Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss the petitioners’ first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1 , relying on the renewal statute codified at O.C.G.A. § 9-2-61(a) , and file a second request after the 30-day limitation period expired. Buckler v. DeKalb County, 290 Ga. App. 190 , 659 S.E.2d 398 , 2008 Ga. App. LEXIS 275 (2008), cert. denied, No. S08C1179, 2008 Ga. LEXIS 676 (Ga. Sept. 8, 2008).

Petition subject to renewal. —

Trial court properly denied the city’s motion to dismiss the landowner’s renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135 , 789 S.E.2d 386 , 2016 Ga. App. LEXIS 441 (2016).

Firefighter did not have right to writ of certiorari. —

Unpublished decision: Because the firefighter did not have a hearing, the firefighter was correct that the firefighter did not have a right to a writ of certiorari, O.C.G.A. § 5-4-1(a) ; however, pursuant to Georgia law, when no other specific legal remedy was available and a party had a clear right to have a certain act performed, a party could seek mandamus, O.C.G.A. § 9-6-20 . Under Georgia law, this procedure could be used to compel a governmental body to act in compliance with the law, for instance to require a governmental board to hold a hearing as provided by law. East v. Clayton County, 436 Fed. Appx. 904, 2011 U.S. App. LEXIS 15925 (11th Cir. 2011).

Review of tenant’s housing assistance by writ of certiorari. —

Because a decision of a hearing officer of a local housing authority terminating a tenant’s housing assistance under Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437 f, did not bear the third essential indicia of a quasi-judicial decision — that it be final, binding, and conclusive of the rights of the interested parties — no writ of certiorari would lie for review of the hearing officer’s decision in superior court under O.C.G.A. § 5-4-1 . Hous. Auth. of Augusta v. Gould, 305 Ga. 545 , 826 S.E.2d 107 , 2019 Ga. LEXIS 185 (2019).

Discretionary nature of judge’s decision. —

Grant of writ of mandamus to the defendant was reversed because mandamus was not an allowable remedy since the opportunity for review via a writ of certiorari existed as to the municipal judge’s decision as the municipal court’s duty under O.C.G.A. § 36-32-6(c) as to the defendant’s marijuana possession was a discretionary act allowing the opportunity for review via a writ. Schaeffer v. Kearney, 355 Ga. App. 449 , 844 S.E.2d 515 , 2020 Ga. App. LEXIS 332 (2020).

Decisions Subject to Review by Certiorari

Availability generally. —

Writ of certiorari to the superior court is a constitutional as well as statutory remedy available when a party is dissatisfied with a decision or judgment of an inferior judicatory exercising judicial or quasi-judicial powers. Flacker v. Berr-Nash Corp., 157 Ga. App. 638 , 278 S.E.2d 180 , 1981 Ga. App. LEXIS 1947 (1981), overruled, Smith v. Elder, 174 Ga. App. 316 , 329 S.E.2d 511 , 1985 Ga. App. LEXIS 1804 (1985).

Function of writ of certiorari is to review erroneous verdict or judgment. Gilbert v. Land Estates, Inc., 62 Ga. App. 845 , 9 S.E.2d 914 , 1940 Ga. App. LEXIS 450 (1940).

Certiorari lies to correct judgments which are irregular or erroneous. Sawyer v. City of Blakely, 2 Ga. App. 159 , 58 S.E. 399 , 1907 Ga. App. LEXIS 304 (1907); McDonald v. Farmers Supply Co., 143 Ga. 552 , 85 S.E. 861 , 1915 Ga. LEXIS 521 (1915).

Judgments which are wholly void. —

Certiorari does not lie as to judgments which are wholly void. Sawyer v. City of Blakely, 2 Ga. App. 159 , 58 S.E. 399 , 1907 Ga. App. LEXIS 304 (1907); McDonald v. Farmers Supply Co., 143 Ga. 552 , 85 S.E. 861 , 1915 Ga. LEXIS 521 (1915).

Writ of certiorari does not lie to set aside a void finding or judgment. Anderson v. Ledbetter-Johnson Contractors, 62 Ga. App. 732 , 9 S.E.2d 860 , 1940 Ga. App. LEXIS 422 (1940).

Writ of certiorari unavailable to set aside verdict or judgment which is absolutely void. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942); Thompson v. Allen, 69 Ga. App. 638 , 26 S.E.2d 490 , 1943 Ga. App. LEXIS 157 (1943).

Entities whose decisions are reviewable. —

Writ of certiorari lies for correction of errors in decisions by municipal corporations, courts, or councils, like other inferior judicatories, when rendered in exercise of their judicial powers. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

Superior court erred in dismissing the appellant’s petition for certiorari in which the appellant sought review of a hearing officer’s decision upholding the public housing authority’s decision to terminate the appellant’s Section 8 voucher benefits as the hearing officer’s decision was subject to review on certiorari because the hearing officer’s decision was the result of quasi-judicial action as the appellant had the right to proper notice and a fair hearing, the appellant was afforded the opportunity to present evidence under judicial forms of procedure, and the hearing officer made a decision after determining the facts under a preponderance of the evidence standard and applying the appropriate law. Hous. Auth. of Augusta v. Gould, 305 Ga. 545 , 826 S.E.2d 107 , 2019 Ga. LEXIS 185 (2019).

Termination of city employee. —

City manager’s decision approving the termination of a city employee was subject to review by a petition for a writ of certiorari. Salter v. City of Thomaston, 200 Ga. App. 536 , 409 S.E.2d 88 , 1991 Ga. App. LEXIS 1063 (1991).

In the employee’s case alleging that the employee was improperly terminated by the City of Atlanta, the city, under O.C.G.A. § 5-4-1(a) , was not entitled to a writ of certiorari, reversing the decision of the City of Atlanta Civil Service Board reinstating the employee after finding that the employee had been wrongfully terminated; evidence supported the determination that the termination of the employee pursuant to the reduction in force violated a city ordinance. City of Atlanta v. Harper, 276 Ga. App. 460 , 623 S.E.2d 553 , 2005 Ga. App. LEXIS 1284 (2005).

Although a trial court’s decision to dismiss an action by dismissed city employees was erroneously based on the court’s determination that the employees had failed to exhaust their administrative remedies from their claim that the reduction-in-force ordinance, Atlanta, Ga., Code § 114-55, was not properly followed, as they had properly appealed to the Service Board and the Board had denied their claims on appeal, the dismissal was proper for other reasons; after the Board’s final decision denying the employees’ appeals, they failed to properly and timely file a writ of certiorari in the trial court pursuant to O.C.G.A. §§ 5-4-1(a) and 5-4-6 in order to obtain review of that decision. Jordan v. City of Atlanta, 283 Ga. App. 285 , 641 S.E.2d 275 , 2007 Ga. App. LEXIS 37 (2007).

Trial court lacked subject-matter jurisdiction to review, pursuant to a writ of certiorari, the termination of a city employee because a city manager was not acting in a quasi-judicial capacity in permitting an employee to present evidence prior to finalizing the city manager’s decision to terminate the employee; the city charter and personnel ordinance did not grant city employees a right to pretermination hearings. Goddard v. City of Albany, 285 Ga. 882 , 684 S.E.2d 635 , 2009 Ga. LEXIS 738 (2009).

Termination of county employee. —

Certiorari provided an adequate postdeprivation remedy for reviewing the actions of a board of county commissioners in terminating a county administrator. Board of Comm'rs v. Farmer, 228 Ga. App. 819 , 493 S.E.2d 21 , 1997 Ga. App. LEXIS 1281 (1997).

Other employment actions. —

Writ of certiorari was a remedy to correct errors committed by any inferior judicatory or any person exercising judicial powers, and since the county police sergeant’s hearing on the county police sergeant’s demotion was a quasi-judicial hearing, and the availability of petitioning for a writ of certiorari was not otherwise limited by law, the county police sergeant was authorized to seek relief in the trial court without first pursuing a discretionary appeal to the county board of commissioners. Crumpler v. Henry County, 257 Ga. App. 615 , 571 S.E.2d 822 , 2002 Ga. App. LEXIS 1248 (2002).

Denial of “line of duty” disability benefits by county school employees board was judicial in nature, and review of the decision by certiorari was required. Starnes v. Fulton County Sch. Dist., 233 Ga. App. 182 , 503 S.E.2d 665 , 1998 Ga. App. LEXIS 952 (1998), cert. denied, No. S98C1694, 1998 Ga. LEXIS 1167 (Ga. Nov. 23, 1998).

Exercises of legislative, executive or ministerial functions. —

Writ of certiorari lies to correct errors or restrain excesses of jurisdiction of inferior courts and officers acting judicially only; the writ will, therefore, not be issued to officers whose functions and duties are ministerial, executive, or legislative and not judicial. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75 , 181 S.E. 834 , 1935 Ga. LEXIS 30 (1935).

Certiorari is not an appropriate remedy to review or obtain relief from judgment, decision, or action of inferior judicatory or body rendered in exercise of legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942); Presnell v. McCollum, 112 Ga. App. 579 , 145 S.E.2d 770 , 1965 Ga. App. LEXIS 779 (1965); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is available for correction of erroneous judgments in exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts. Hayes v. Brown, 205 Ga. 234 , 52 S.E.2d 862 , 1949 Ga. LEXIS 335 (1949).

Review of a recorder’s court decision lies in the superior court by writ of certiorari. McMillian v. City of Rockmart, 653 F.2d 907, 1981 U.S. App. LEXIS 18720 (5th Cir. 1981).

Denial of conditional use permit was quasi-judicial. —

Because a decision denying a conditional use permit required the zoning board to determine the facts and apply the ordinance’s legal standards to them, which was a decision-making process akin to a judicial act, the decision was reviewable by certiorari under O.C.G.A. § 5-4-1(a) ; the owner’s failure to file a certiorari petition barred the owner’s claims. O.C.G.A. § 36-66-3(4)(E)’s reference to “legislative” action was not determinative. Riverdale Land Group, LLC v. Clayton County, 354 Ga. App. 1 , 840 S.E.2d 132 , 2020 Ga. App. LEXIS 107 (2020).

Review by writ defined by statute. —

In an action wherein a property owner was challenging the denial of a site development permit, the grant of the county’s motion to dismiss was reversed, in part, as to the owner seeking review by writ of certiorari because the scope of review by writ of certiorari was defined by statute and the statute’s scope could not be enlarged by local ordinance regardless of whether the zoning ordinance provided specifically for such review. Kammerer Real Estate Holdings, LLC v. Forsyth County Bd. of Comm'rs, 302 Ga. 284 , 806 S.E.2d 561 , 2017 Ga. LEXIS 892 (2017).

What Is Judicial Action

1.In General

What is judicial action. —

Judicial action is an adjudication upon rights of parties who in general appear or are brought before tribunal by notice or process, and upon whose claims some decision or judgment is rendered; it implies impartiality, disinterestedness, a weighing of adverse claims, and is inconsistent with discretion on one hand — for tribunal must decide according to law and rights of parties — or with dictation on the other; for in first instance the court must exercise the court’s own judgment under the law, and not act under a mandate from another power. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75 , 181 S.E. 834 , 1935 Ga. LEXIS 30 (1935).

Character of action determinative. —

Character of action in a given case must decide whether that action is judicial, ministerial, or legislative, or whether it be simply that of a public agent of the county or state, as in its varied jurisdiction it may by turns be each. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75 , 181 S.E. 834 , 1935 Ga. LEXIS 30 (1935).

Test in determining whether proceeding is judicial. —

In determining whether proceeding is judicial in character, question hinges not on whether parties at interest were in fact given an opportunity to be heard, but the test is whether parties at interest had a right under law to demand a trial in accordance with judicial procedures. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945); What It Is, Inc. v. Jackson, 146 Ga. App. 574 , 246 S.E.2d 693 , 1978 Ga. App. LEXIS 2462 (1978), cert. denied, 444 U.S. 825, 100 S. Ct. 47 , 62 L. Ed. 2 d 32, 1979 U.S. LEXIS 2563 (1979).

Effect of fact that tribunal could have acted nonjudicially. —

If a person or tribunal has right under proper delegated authority to act in judicial capacity, character of such judicial procedure, when had as prescribed, is not impaired because under the law such tribunal might have had alternative right to act ex parte without trial, but refused to exercise such right. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

Fact of trial when none is authorized by statute. —

Statute giving county commissioners in certain counties power to grant or refuse permission to establish cemeteries outside limits of incorporated towns does not confer upon such commission the duties and functions of a court, so that writ of certiorari might issue from its action taken upon any such application; rather the commission’s action is merely entertainment and refusal of a request pertaining to executive duties of commissioners, and fact that there is a trial, when none is authorized under statute, does not operate to change nature and character of procedure. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

Exercise of discretion does not render action taken judicial. —

Fact that public agent exercises judgment or discretion in performance of duties does not make the agent’s action or functions judicial. Southeastern Greyhound Lines v. Georgia Pub. Serv. Comm'n, 181 Ga. 75 , 181 S.E. 834 , 1935 Ga. LEXIS 30 (1935).

Distinction between judicial and quasi-judicial action. —

Performance of judicial acts under authority conferred upon courts is judicial in character, while performance of judicial acts under authority conferred upon other persons, boards, or tribunals is quasi-judicial. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

Basic distinction between administrative and judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by action taken. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

Chief distinction between legislative and judicial function is that former sets up rights or inhibitions, usually general in character; while latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

2.Application

Decisions of trial judge of municipal court of Atlanta. —

Certiorari to superior court lies from decisions of trial judge of municipal court of Atlanta, Fulton section, for party who wishes to complain of judgment, order, or ruling. Gavant v. Berger, 182 Ga. 277 , 185 S.E. 506 , 1936 Ga. LEXIS 333 (1936); Wrenn v. Bowden, 56 Ga. App. 713 , 193 S.E. 456 , 1937 Ga. App. LEXIS 209 (1937).

Probate judge’s refusal to entertain petition to commit incompetent veteran. —

Refusal of court of ordinary (now probate court) to entertain jurisdiction of petition to commit incompetent World War I veteran to a United States hospital, is not reviewable by mandamus; certiorari is the appropriate remedy by which that judgment should be reviewed. Cheek v. Eve, 182 Ga. 30 , 184 S.E. 700 , 1936 Ga. LEXIS 279 (1936).

Decision, after trial, by governing body that alleged acts constitute nuisance. —

Decision by governing body of municipality as to whether alleged acts constitute a nuisance in violation of city ordinance, and whether the nuisances should be abated as provided by other city ordinances, made after trial in which parties at interest participated, is a judicial determination from which certiorari lies, and not an exercise of mere legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942).

Trial and conviction of police officer for conduct unbecoming an officer. —

Trial and conviction of a police officer, pursuant to city ordinance, on charges of conduct unbecoming an officer and violation of a police department rule, is a judicial proceeding from final judgment in which a writ of certiorari will lie. Heath v. City of Atlanta, 67 Ga. App. 85 , 19 S.E.2d 746 , 1942 Ga. App. LEXIS 341 (1942).

Revocation of certificate by Board for Examination, Qualification, and Registration of Architects is a judicial act and certiorari to superior court is available. Beckanstin v. Dougherty County Council of Architects, 215 Ga. 543 , 111 S.E.2d 361 , 1959 Ga. LEXIS 535 (1959).

City council decision denying application for liquor license. —

Restaurant owner’s exclusive remedy from the city’s denial of the owner’s application for a liquor license was review of the city’s decisions via writ of certiorari under O.C.G.A. § 5-4-1(a) . The hearing on the owner’s application was pursuant to notice, and the parties were provided with the opportunity to appear, to be represented by counsel, and to present evidence. Rozier v. Mayor, City of Savannah, 310 Ga. App. 178 , 712 S.E.2d 596 , 2011 Ga. App. LEXIS 520 (2011).

Hearing before a city procurement appeals hearing officer was a quasi-judicial proceeding as contemplated by O.C.G.A. § 5-4-1 because the ordinance authorizing the hearing entitled the litigants to a hearing “in accordance with judicial procedures” and because the hearing officer acted judicially, rather than administratively. Mack v. City of Atlanta, 227 Ga. App. 305 , 489 S.E.2d 357 , 1997 Ga. App. LEXIS 902 (1997).

Decision granting special use permit was quasi-judicial. —

Decision by a county board to grant a special use permit was a quasi-judicial decision because the process involved determining the facts and applying the county ordinance’s legal standards to the permits, which was akin to a judicial act; the applicant therefore waived the applicant’s challenge to two property owners’ standing by failing to object before the board. O.C.G.A. § 36-66-3(4)(E) did not apply or compel the conclusion that the board of commissioner’s decision was legislative. York v. Athens College of Ministry, Inc., 348 Ga. App. 58 , 821 S.E.2d 120 , 2018 Ga. App. LEXIS 632 (2018).

Proceedings before civil service board of county are quasi-judicial in character. Since board therefore exercises judicial powers, writ of certiorari lies for correction of errors committed by the board. Thompson v. Dunn, 102 Ga. App. 164 , 115 S.E.2d 754 , 1960 Ga. App. LEXIS 578 (1960).

Adverse decisions of city personnel boards regarding discharge. —

Discharged employees of city who are authorized to appeal their discharge to personnel board of city, are entitled to petition superior court for writ of certiorari from adverse decision of personnel board. Willis v. Jackson, 148 Ga. App. 432 , 251 S.E.2d 341 , 1978 Ga. App. LEXIS 3184 (1978).

Decisions rendered by county boards of education. —

County board of education is at times a court of limited jurisdiction, and the board’s decisions rendered in this sphere are judicial in nature, and are therefore reviewable by writ of certiorari. Fuller v. Williams, 150 Ga. App. 730 , 258 S.E.2d 538 , 1979 Ga. App. LEXIS 2359, rev'd, 244 Ga. 846 , 262 S.E.2d 135 , 1979 Ga. LEXIS 1438 (1979).

Decision of state university dismissing tenured professor. —

Trial court properly dismissed a tenured professor’s petition for writ of certiorari challenging the professor’s dismissal from a state university because the hearing committee process resulting in the professor’s dismissal was administrative, not judicial in nature; therefore, the trial court lacked jurisdiction over the matter. Laskar v. Bd. of Regents of the Univ. Sys. of Ga., 320 Ga. App. 414 , 740 S.E.2d 179 , 2013 Ga. App. LEXIS 202 (2013).

Board of trustees of Employees’ Retirement System of Georgia is not a judicial body within the meaning of this section. Cantrell v. Board of Trustees of Employees' Retirement Sys., 135 Ga. App. 445 , 218 S.E.2d 97 , 1975 Ga. App. LEXIS 1695 (1975), aff'd, 237 Ga. 287 , 227 S.E.2d 379 , 1976 Ga. LEXIS 1470 (1976).

Petition for writ of certiorari was appropriate remedy for homeowners denied building permit. —

Mandamus was not the appropriate remedy for homeowners whose building permit had been denied by a city; rather, the homeowners were required to pursue the homeowners’ appeal through the filing of a petition for a writ of certiorari, pursuant to Statesboro, Ga., Zoning Ordinance § 1809 and O.C.G.A. § 5-4-1(a) ; moreover, the homeowners’ appeal was untimely under O.C.G.A. § 5-4-6(a) . City of Statesboro v. Dickens, 293 Ga. 540 , 748 S.E.2d 397 , 2013 Ga. LEXIS 647 (2013).

Decisions of police chief. —

Because the police officer identified no evidence that employees seeking injured on the job benefits were entitled to notice, a hearing in accordance with judicial procedure, and an opportunity to present evidence, the police chief’s action constituted the discretionary exercise of executive power; consequently, the superior court correctly determined that there was no judicial or quasi-judicial action below and properly dismissed the officer’s petition for writ of certiorari under O.C.G.A. § 5-4-1 . Laughlin v. City of Atlanta, 265 Ga. App. 61 , 592 S.E.2d 874 , 2004 Ga. App. LEXIS 11 (2004).

County authorities’ order to sheriff to take charge of room in courthouse. —

Action of county authorities in ordering sheriff to take charge of room in courthouse occupied by justice of peace was mere exercise of administrative power, and possessed no such attribute of judicial function as to permit certiorari therefrom under this section. McDonald v. Marshall, 185 Ga. 438 , 195 S.E. 571 , 1938 Ga. LEXIS 466 (1938).

Ruling of city council upholding the suspension of police officer was judicatory act, and certiorari would lie to review the ruling. Raughton v. Town of Fort Oglethorpe, 177 Ga. App. 171 , 338 S.E.2d 754 , 1985 Ga. App. LEXIS 2550 (1985).

General Consideration

Right of certiorari is a constitutional right, and may be used to review any judgment of an inferior judicatory. Young v. Broyles, 16 Ga. App. 356 , 85 S.E. 366 , 1915 Ga. App. LEXIS 627 (1915).

Right of certiorari, if pursued in due time, is unaffected by occurrences in lower court. Young v. Broyles, 16 Ga. App. 356 , 85 S.E. 366 , 1915 Ga. App. LEXIS 627 (1915).

Right of certiorari may be exercised without moving for new trial in trial court. Young v. Broyles, 16 Ga. App. 356 , 85 S.E. 366 , 1915 Ga. App. LEXIS 627 (1915).

Construction with O.C.G.A. § 51-1-27 . —

Upon the grant of certiorari in a medical malpractice action filed by plaintiff parents against a pediatrician, a nurse, and others, a Georgia trial court did not abuse the court’s discretion by prohibiting the parents from showing that the nurse failed to pass the nursing board examination, as such evidence was irrelevant, and even if it could be said that the evidence had any probative value, it was substantially outweighed by the danger of undue prejudice. Snider v. Basilio, 281 Ga. 261 , 637 S.E.2d 40 , 2006 Ga. LEXIS 882 (2006).

Each party may have writ in the party’s own favor in same cause, and pendency of first writ sued out is no ground for dismissing second. Cunningham v. Elliott, 92 Ga. 159 , 18 S.E. 365 , 1893 Ga. LEXIS 33 (1893).

Writ of certiorari as full and adequate remedy at law. —

Writ of certiorari ordinarily furnishes a full and adequate remedy at law for correction of errors in decisions by municipal corporations, courts, or councils, rendered in exercise of judicial powers; so that even though a property right may be primarily involved in such manner as would authorize injured party to resort to equity, one is not entitled to claim such relief, when one has already appeared before a municipal judicatory, and that body has rendered an adverse decision. Ballard v. Mayor of Carrollton, 194 Ga. 489 , 22 S.E.2d 81 , 1942 Ga. LEXIS 608 (1942).

Absent sanction by judge, clerk is unauthorized to file application or issue writ of certiorari. Bellew v. State Hwy. Dep't, 127 Ga. App. 301 , 193 S.E.2d 202 , 1972 Ga. App. LEXIS 863 (1972).

Failure to obtain sanction is not amendable defect. —

Failure to obtain the requisite sanction from the appropriate judge is not an amendable defect if the 30-day time requirement for applying for certiorari under O.C.G.A. § 5-4-6(a) has expired. Cobb County v. Herren, 230 Ga. App. 482 , 496 S.E.2d 558 , 1998 Ga. App. LEXIS 194 (1998), cert. denied, No. S98C0815, 1998 Ga. LEXIS 537 (Ga. May 14, 1998).

Plaintiff may obtain order directing clerk to issue writ. —

If clerk fails to issue writ of certiorari before term to which the writ is returnable, plaintiff may, if there has been no laches on the plaintiff’s part, move the court for an order directing the clerk to issue a writ. Without such order, the clerk has no authority to issue a writ of certiorari subsequently to the term to which the writ was originally returnable, and a motion to dismiss will be sustained if one attempts to do so. Walea v. State, 121 Ga. 585 , 49 S.E. 710 , 1905 Ga. LEXIS 8 (1905).

When first petition is sanctioned, but not filed with clerk. —

When petition for certiorari to review judgment of justice of peace was sanctioned, but was never filed in office of clerk of superior court, petition was a mere nullity; and second petition for certiorari in same case, presented to judge of superior court within 30 days from date of judgment complained of, is not subject to dismissal on ground that petitioner has no legal right to present second petition for certiorari in same case. Weaver v. Moss, 71 Ga. App. 329 , 30 S.E.2d 779 , 1944 Ga. App. LEXIS 354 (1944).

Factual statements of justice of peace, in answer to writ of certiorari presumed true until traversed. Shelton v. Doster, 99 Ga. App. 863 , 109 S.E.2d 862 , 1959 Ga. App. LEXIS 973 (1959).

Magistrate’s return failing to send up proceedings. —

Magistrate’s return is incomplete when the return fails to certify and send up any proceedings in the case. Hardy v. Hardy, 2 Ga. App. 530 , 58 S.E. 779 , 1907 Ga. App. LEXIS 446 (1907).

An assignment of error that this duty was not complied with must be sustained. Stoufer v. Missenheimer, 26 Ga. App. 554 , 106 S.E. 560 , 1921 Ga. App. LEXIS 522 (1921).

Failure of justice of peace to send up copies of proceedings in the justice’s court when the proceedings are necessary to determination of cause is good ground for dismissal of certiorari; certiorari will not be dismissed because the magistrate fails to send up copies of proceedings when errors complained of in petition as verified by answer can be fully considered and determined without reference to such proceedings. Lynn v. Crapps, 47 Ga. App. 744 , 171 S.E. 398 , 1933 Ga. App. LEXIS 635 (1933).

When the magistrate has failed to certify and send up proceedings in the case, assignment of error that duty was not complied with must be sustained. Stoufer v. Missenheimer, 26 Ga. App. 554 , 106 S.E. 560 , 1921 Ga. App. LEXIS 522 (1921).

Remedy to review superior court judge’s refusal to sanction petition for certiorari is by writ of error to proper appellate court and not by petition to appellate court for mandamus to compel judge to sanction petition. Jones v. Anderson, 106 Ga. App. 590 , 127 S.E.2d 719 , 1962 Ga. App. LEXIS 780 (1962).

Action under Dram Shop Act. —

Upon certiorari review, given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia’s Dram Shop Act, O.C.G.A. § 51-1-40(b) , the trial court erred in granting summary judgment to an injured party’s guardian as the tavern’s manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern’s intoxicated patron’s would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312 , 647 S.E.2d 29 , 2007 Ga. LEXIS 471 (2007).

Denial of writ improper. —

Since the municipal court did not inquire into the defendant’s understanding of the nature of the violation to which the defendant confessed guilt, and the record likewise did not show any factual basis for the plea independent of such an inquiry, the superior court erred in denying a writ of certiorari. Brownlee v. City of Atlanta, 212 Ga. App. 174 , 441 S.E.2d 492 , 1994 Ga. App. LEXIS 200 (1994).

Court without ability to enforce 2010 Order. —

Trial court erred in upholding the decision of a recorder’s court finding the defendant in contempt of the 2010 Order from an unrelated case because the uncontroverted evidence showed that the 2010 case against the defendant had been dismissed; thus, the recorder’s court was divested of jurisdiction to consider the contempt motion as part of the 2013 enforcement action and lacked authority to enforce the 2010 Order, which was no longer in effect. Lewis v. City of Savannah, 336 Ga. App. 126 , 784 S.E.2d 1 , 2016 Ga. App. LEXIS 138 (2016).

Bond

Issuance of writ in criminal case from city court. —

Application for writ of certiorari to correct errors alleged to have been committed in criminal court of Atlanta, need not be accompanied by bond conditioned for appearance of accused to answer and abide final order, sentence, and judgment of court. Laws v. State, 15 Ga. App. 361 , 83 S.E. 279 , 1914 Ga. App. LEXIS 114 (1914).

Bond not prerequisite to issuance of writ of certiorari in criminal case from city court. Malone v. State, 27 Ga. App. 53 , 107 S.E. 358 , 1921 Ga. App. LEXIS 679 (1921).

Bond as condition precedent to review by certiorari of recorder’s court conviction. —

Filing of bond or pauper’s affidavit provided for under former Code 1933, §§ 19-214 and 19-215 (see O.C.G.A. § 5-4-20 ), condition precedent to application for certiorari to review judgment of conviction in recorder’s court. West v. City of College Park, 116 Ga. App. 355 , 157 S.E.2d 491 , 1967 Ga. App. LEXIS 811 (1967).

Decisions from Which Certiorari Is Available

1.In General

Decisions of municipal corporations, courts, or councils rendered in judicial capacity. —

Writ of certiorari lies for correction of errors in decisions by municipal corporations, courts, or councils, like other inferior judicatories, when rendered in exercise of their judicial powers. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

Petition subject to renewal. —

Trial court properly denied the city’s motion to dismiss the landowner’s renewed petition for writ of certiorari because the case was capable of renewal under O.C.G.A. § 9-2-61(a) as the trial court had properly determined that the lack of personal service as to the zoning board of appeals did not render the petition void and, thus, a bar to renewal. City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135 , 789 S.E.2d 386 , 2016 Ga. App. LEXIS 441 (2016).

Exercises of legislative, executive, or ministerial functions. —

Certiorari is not an appropriate remedy to review or obtain relief from judgment, decision, or action of inferior judicatory or body rendered in exercise of legislative, executive, or ministerial functions. City of Cedartown v. Pickett, 193 Ga. 840 , 20 S.E.2d 263 , 1942 Ga. LEXIS 492 (1942); Presnell v. McCollum, 112 Ga. App. 579 , 145 S.E.2d 770 , 1965 Ga. App. LEXIS 779 (1965); 106 Forsyth Corp. v. Bishop, 362 F. Supp. 1389, 1972 U.S. Dist. LEXIS 15272 (M.D. Ga. 1972), aff'd, 482 F.2d 280, 1973 U.S. App. LEXIS 8695 (5th Cir. 1973).

In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is available for correction of erroneous judgments in exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts. Hayes v. Brown, 205 Ga. 234 , 52 S.E.2d 862 , 1949 Ga. LEXIS 335 (1949).

Certiorari lies only as to issues raised in trial court. —

Error which may be corrected by writ of certiorari is one made by tribunal whose judgment is being reviewed because of such error. When it does not appear from the record that issue was made in trial court, it cannot be raised for first time by certiorari in superior court and reviewed in the Supreme Court. Smith v. Mayor of Macon, 202 Ga. 68 , 42 S.E.2d 128 , 1947 Ga. LEXIS 359 (1947).

Final determination required. —

Appeal to the superior court from an order of the city courts may be taken only by petition for certiorari pursuant to O.C.G.A. § 5-4-3 , and only from a “decision or judgment.” The writ of certiorari does not lie to correct a judgment of an inferior judicatory until after a final determination of the case. Jenga v. Deveaux, 193 Ga. App. 436 , 388 S.E.2d 361 , 1989 Ga. App. LEXIS 1474 (1989).

Certiorari will not lie to correct void judgment. McDonald v. Farmers Supply Co., 143 Ga. 552 , 85 S.E. 861 , 1915 Ga. LEXIS 521 (1915); Gravitt v. Mullins, 28 Ga. App. 806 , 113 S.E. 61 , 1922 Ga. App. LEXIS 877 (1922); Griggs v. City of Macon, 154 Ga. 519 , 114 S.E. 899 , 1922 Ga. LEXIS 408 (1922).

Party winning party’s case completely in justice’s court is not entitled to writ. Shope v. Fite & Boston, 91 Ga. 174 , 16 S.E. 990 , 1892 Ga. LEXIS 552 (1892).

When there are disputed issues of fact. —

When in trial of case pending in justice’s court, there are disputed issues of fact, judgment rendered by magistrate cannot be directly reviewed by writ of certiorari, but there must be appeal, either to jury in that court or to superior court. Story v. Printup, 52 Ga. App. 818 , 184 S.E. 752 , 1936 Ga. App. LEXIS 259 (1936).

When no issue of fact, justice court’s judgment is reviewable by certiorari, regardless of amount involved. Ray v. Rogers, 58 Ga. App. 804 , 200 S.E. 193 , 1938 Ga. App. LEXIS 137 (1938).

Availability of certiorari to test sufficiency of evidence to warrant verdicts or judgments. —

Ray v. Rogers, 58 Ga. App. 804 , 200 S.E. 193 , 1938 Ga. App. LEXIS 137 (1938).

Available for decisions of any inferior judicatory. —

O.C.G.A. § 5-4-3 has reference to the correction of errors in cases in which the writ of certiorari lies, and the writ shall apply to persons dissatisfied with the decision or judgment of any inferior judicatory. Pough v. State, 162 Ga. App. 63 , 290 S.E.2d 300 , 1982 Ga. App. LEXIS 3088 (1982).

Review of a recorder’s court decision. —

Proper procedure for appealing decisions from a county recorder’s court is by certiorari to the superior court. Smith v. Gwinnett County, 246 Ga. App. 865 , 542 S.E.2d 616 , 2000 Ga. App. LEXIS 1391 (2000).

2.Application

Writ of certiorari lies when motion for new trial is overruled. Walker v. State, 8 Ga. App. 214 , 68 S.E. 873 , 1910 Ga. App. LEXIS 105 (1910).

Certiorari may be used as means of reviewing judgment upon motion for new trial. Young v. Broyles, 16 Ga. App. 356 , 85 S.E. 366 , 1915 Ga. App. LEXIS 627 (1915).

Justice court’s dismissal for want of prosecution. —

From judgment of justice’s court dismissing case for want of prosecution, appeal to jury does not lie. If there is error in judgment, certiorari is remedy to have case reinstated. Dolvin, Davidson & Co. v. W.W. Stovall Co., 8 Ga. App. 37 , 68 S.E. 488 , 1910 Ga. App. LEXIS 16 (1910).

Analyzing the limits of the public duty doctrine. —

Upon certiorari review by the Georgia supreme court to examine a determination by the court of appeals that the public duty doctrine did not extend to the official actions of building inspectors, but was limited to the police protection activities of law enforcement officers, the supreme court upheld that determination, as: (1) despite a building inspector’s contrary claim, the terms “police protection” and “police power” are not synonymous; and (2) case law provides that the public duty doctrine addresses only the provision of police protection services traditionally done by police law enforcement personnel. Gregory v. Clive, 282 Ga. 476 , 651 S.E.2d 709 , 2007 Ga. LEXIS 714 (2007).

Certiorari granted from justice court’s judgment in suit on unverified open account. Hardy v. Hardy, 2 Ga. App. 530 , 58 S.E. 779 , 1907 Ga. App. LEXIS 446 (1907).

Certiorari granted from justice court’s judgment concerning forcible entry and detainer. Taylor v. Gay, 20 Ga. 77 , 1856 Ga. LEXIS 15 (1856); McDonald v. Cousins, 23 Ga. 227 , 1857 Ga. LEXIS 252 (1857).

Certiorari granted from justice court’s judgment taxing costs. Hewett v. Robertson, 124 Ga. 920 , 53 S.E. 456 , 1906 Ga. LEXIS 660 (1906).

Certiorari granted from justice court’s judgment in proceeding to strengthen attachment bond. Gregory v. Clark, 73 Ga. 542 , 1884 Ga. LEXIS 169 (1884).

Juror’s names omitted from jury list. —

Certiorari from justice court’s judgment denied when the jurors’ names were omitted from jury list. Mitchell v. Bradberry, 76 Ga. 15 , 1885 Ga. LEXIS 6 (1885).

Certiorari granted from justice court’s judgment in suit establishing lost papers. Humphrey v. Johnson, 13 Ga. App. 557 , 79 S.E. 530 , 1913 Ga. App. LEXIS 255 (1913).

Section applicable to certiorari from city courts unless Act creating court provides otherwise. Miller v. State, 126 Ga. 558 , 55 S.E. 405 , 1906 Ga. LEXIS 450 (1906); Malone v. State, 27 Ga. App. 53 , 107 S.E. 358 , 1921 Ga. App. LEXIS 679 (1921).

Certiorari to superior court lies from decisions of trial judge of municipal court of Atlanta, Fulton section, for party who wishes to complain of judgment, order, or ruling. Gavant v. Berger, 182 Ga. 277 , 185 S.E. 506 , 1936 Ga. LEXIS 333 (1936).

Writ of certiorari lies from judgment of police court. Davis v. City of Waycross, 10 Ga. App. 384 , 73 S.E. 556 , 1912 Ga. App. LEXIS 526 (1912).

Certiorari unavailable as to magistrate’s judgment binding defendant over to answer to criminal offense. Griggs v. City of Macon, 154 Ga. 519 , 114 S.E. 899 , 1922 Ga. LEXIS 408 (1922).

Certiorari permitted from decision of ordinary (now judge of probate court) sitting as habeas corpus court. Chapman v. Woodruff, 34 Ga. 91 , 1864 Ga. LEXIS 38 (1864); Malone v. State, 27 Ga. App. 53 , 107 S.E. 358 , 1921 Ga. App. LEXIS 679 (1921).

Certiorari permitted from decision of ordinary (now judge of probate court) under former Code 1873, §§ 738, 739, 740 (see O.C.G.A. § 44-9-59 ), governing removal of obstructions on rights-of-way. Fortson v. Mattox, 67 Ga. 282 , 1881 Ga. LEXIS 169 (1881).

Certiorari permitted from decision of mayor and council acting in judicial capacity. Mayor of Macon v. Shaw, 16 Ga. 172 , 1854 Ga. LEXIS 184 (1854); Carr v. City Council, 124 Ga. 116 , 52 S.E. 300 , 1905 Ga. LEXIS 665 (1905).

Certiorari permitted from decision of county commissioners ordering opening of private right-of-way. Leathers v. Furr, 62 Ga. 421 , 1879 Ga. LEXIS 548 (1879).

Failure to issue writ. —

Superior court erred in denying the city board of appeals’ motion to dismiss a petition for writ of certiorari because there was a complete failure to even issue a writ of certiorari, let alone serve the writ upon the board as the respondent; and the petitioner failed to name the city as an opposite party, and failed to serve the city with a copy of the petition and with a copy of the writ in the time required. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551 , 801 S.E.2d 599 , 2017 Ga. App. LEXIS 245 (2017), cert. denied, No. S17C1839, 2017 Ga. LEXIS 1010 (Ga. Dec. 11, 2017).

Certiorari not available from ruling of plumbing inspector. City Council v. Loftis, 156 Ga. 77 , 118 S.E. 666 , 1923 Ga. LEXIS 206 (1923).

Appeal from decision of recorder’s court. —

Recorder’s Court of Chatham County is not such a “like court” within the meaning of O.C.G.A. § 5-4-3 establishing this court’s jurisdiction; therefore, the proper procedure for appealing from any decision of a recorder’s court is by application for a writ of certiorari. Ferrell v. State, 160 Ga. App. 881 , 289 S.E.2d 3 , 1982 Ga. App. LEXIS 1724 (1982).

Local constitutional amendment vesting the recorder’s court of a county with jurisdiction to take and entertain pleas of guilty in misdemeanor cases does not authorize a direct appeal to the Court of Appeals and the writ of certiorari is still the method of appealing the writ. Pough v. State, 162 Ga. App. 63 , 290 S.E.2d 300 , 1982 Ga. App. LEXIS 3088 (1982).

Proper method for obtaining review of a decision of a recorder’s court is either by direct appeal to the superior court, in the case of traffic violations, or by application for certiorari to the superior court. Franklin v. Recorder's Court, 174 Ga. App. 498 , 330 S.E.2d 429 , 1985 Ga. App. LEXIS 1857 (1985).

Defendant’s challenge to the defendant’s misdemeanor traffic convictions by a motion to vacate was not an appropriate remedy, and the defendant’s motion could not be construed as a motion for arrest of judgment or other alternative motion because the motion was untimely under O.C.G.A. § 40-13-33(a) ; the 180-day limit applied to any challenge that could have been brought by habeas corpus, and suspension of a driver’s license interfered with a liberty interest. The defendant could have brought a direct appeal under O.C.G.A. § 5-4-3 . Munye v. State, 342 Ga. App. 680 , 803 S.E.2d 775 , 2017 Ga. App. LEXIS 354 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. Apr. 16, 2018).

Hearing before county board of commissioners issuing “order” finding liability for business taxes and directing that a fieri facias be issued for the amount of taxes due does not constitute a decision of an inferior judicatory from which the taxpayer should petition for certiorari in the superior court where the hearing is not transcribed or recorded, but is memorialized only by the minutes of the meeting, the hearing is not conducted in accordance with judicial procedure, and the ordinance in question does not give an appellant as a matter of right a trial in accordance with judicial procedure. Accordingly, declaratory judgment relief is proper. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577 , 306 S.E.2d 924 , 1983 Ga. App. LEXIS 2553 (1983).

Petition for Certiorari

1.In General

Special assignment of error necessary. —

No questions are presented for review unless raised by special assignment of error. Huson v. Farmer, 53 Ga. App. 131 , 185 S.E. 119 , 1936 Ga. App. LEXIS 24 (1936).

Petition concerning judgment or ruling of court which assigns no error is an absolute nullity. Clements v. McCormick Harvesting Mach. Co., 115 Ga. 851 , 42 S.E. 222 , 1902 Ga. LEXIS 625 (1902); Green v. Patterson, 25 Ga. App. 374 , 103 S.E. 437 , 1920 Ga. App. LEXIS 811 (1920).

Assignments of error in petition for certiorari must be specific, and when based on rulings of trial court must specifically point out reasons why rulings are error. Grant v. State, 48 Ga. App. 162 , 172 S.E. 89 , 1933 Ga. App. LEXIS 514 (1933).

Failure to issue writ. —

Although the city board of appeals was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, the superior court erred in denying the board’s motion to dismiss because there was a failure to comply with the statutory requirements as no writ had been issued and served; and, while it was the clerk’s duty to issue the writ, it was also separately the duty of the petitioner or the petitioner’s counsel to ensure that a writ was served, and the petitioner could not completely divorce itself from the failure that occurred in the current case. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551 , 801 S.E.2d 599 , 2017 Ga. App. LEXIS 245 (2017), cert. denied, No. S17C1839, 2017 Ga. LEXIS 1010 (Ga. Dec. 11, 2017).

Dismissal proper when respondent does not answer. —

In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. § 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. § 5-4-7 , dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. § 5-4-3 . Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304 , 840 S.E.2d 708 , 2020 Ga. App. LEXIS 166 (2020).

2.Sufficiency of Assignment of Error

Must specify wherein verdict or judgment is erroneous. —

Petition merely objecting to judgment, without stating reason, is insufficient. Papworth v. City of Fitzgerald, 111 Ga. 54 , 36 S.E. 311 , 1900 Ga. LEXIS 481 (1900); Harrell v. City of Quitman, 17 Ga. App. 299 , 86 S.E. 662 , 1915 Ga. App. LEXIS 363 (1915).

Assignment of error stating only that judgment is contrary to law is insufficient. Davis v. Town of Gibson, 24 Ga. App. 813 , 102 S.E. 466 , 1920 Ga. App. LEXIS 537 (1920).

Assignments of error must be specific whether contained in bill of exceptions or in petition for certiorari, and, when based upon decision of trial court, must specifically point out reason why decision is error. Wall v. Hawker Pottery Co., 27 Ga. App. 255 , 108 S.E. 134 , 1921 Ga. App. LEXIS 804 (1921).

Failure to point out error in rulings renders assignment of error insufficient. Illinois C.R.R. v. Banks, 31 Ga. App. 756 , 122 S.E. 85 , 1924 Ga. App. LEXIS 170 (1924).

Mere general averment of error, in connection with which there is no statement or assignment whatever as to how or wherein rulings complained of were erroneous, presents no case or question for decision by judge of the superior court. Chan v. Judge, 36 Ga. App. 13 , 134 S.E. 925 , 1926 Ga. App. LEXIS 726 (1926); Davis v. Lee, 38 Ga. App. 667 , 145 S.E. 110 , 1928 Ga. App. LEXIS 383 (1928).

When verdict or judgment is complained of, assignment of error, unless judgment is on demurrer (now motion to dismiss) or similar pleading or on motion for new trial, must specifically point out wherein verdict or judgment is erroneous. Feckoury v. Maloney, 40 Ga. App. 157 , 149 S.E. 91 , 1929 Ga. App. LEXIS 64 (1929).

General exception to judgment suffices when it is alleged error stems from erroneous antecedent ruling, provided specific assignments of error are made and preserved as to such antecedent rulings. Louisville & N.R.R. v. Lovelace, 26 Ga. App. 286 , 106 S.E. 6 , 1921 Ga. App. LEXIS 107 (1921).

Assignment of error upon jury charge must specify error or state alternate charge. —

In petition for certiorari, assignment of error upon excerpt from charge of court presents no question for reviewing court when it is not pointed out wherein excerpt is erroneous, or why it should not have been given, or why different instructions should have been given. Maner v. State, 54 Ga. App. 282 , 187 S.E. 692 , 1936 Ga. App. LEXIS 538 (1936).

Must set forth ordinance allegedly violated or deny ordinance’s existence. —

Petition for certiorari from recorder’s court, seeking review by superior court of judgment, is fatally defective when the petition does not set out copy of ordinance upon which charge or summons is predicated, or else a denial of its existence. Wright v. City of Atlanta, 61 Ga. App. 650 , 7 S.E.2d 215 , 1940 Ga. App. LEXIS 207 (1940).

Defendant’s petition for writ of certiorari was fatally and fundamentally flawed, as the writ did not recite the provisions of the statute under which defendant was convicted, so the appellate court had no context within which to review the evidence. Collier v. Merck, 261 Ga. App. 831 , 584 S.E.2d 1 , 2003 Ga. App. LEXIS 502 (2003).

Petition for certiorari from conviction for violation of municipal ordinance should contain provisions of ordinance. —

When it is sought to review by certiorari a conviction on charge of having violated a municipal ordinance, existence of which is admitted in petition for certiorari, provisions of ordinance should be stated in petition, but it is not necessary that ordinance be literally copied therein. Childrey v. City of Atlanta, 62 Ga. App. 107 , 7 S.E.2d 919 , 1940 Ga. App. LEXIS 607 (1940).

Because a city’s petition for certiorari plainly and distinctly asserted the errors complained of, the superior court did not err in denying the city’s motion to dismiss; moreover, the record reflected that the bar managers cited for violation of Atlanta, Ga., Code of Ordinances § 10-46 (1995) preserved the issue as to the constitutionality of the ordinance and the ordinance’s enforcement. City of Atlanta v. Jones, 283 Ga. App. 125 , 640 S.E.2d 698 , 2006 Ga. App. LEXIS 1572 (2006).

Certification of payment of costs and giving of security need not be attached to petition. —

It is not necessary to attach to petition for certiorari a certificate of magistrate that costs have been paid and security given before sanction of petition of judge of superior court can be obtained. Jones v. Johnson & Ledbetter Constr. Co., 185 Ga. 323 , 194 S.E. 902 , 1938 Ga. LEXIS 413 (1938).

Completed transcript of evidence adduced at board of education hearing is not required for certiorari petition under section, although appellant may elect to incorporate it in petition. Booth v. Ware County Bd. of Educ., 223 Ga. 583 , 157 S.E.2d 469 , 1967 Ga. LEXIS 612 (1967).

Assignment of error that judgment complained of is contrary to law, truth, and justice, is insufficient. Huson v. Farmer, 53 Ga. App. 131 , 185 S.E. 119 , 1936 Ga. App. LEXIS 24 (1936).

General Consideration

Giving bond or making affidavit is condition precedent, in civil case, to issuance of writ. Page v. White, 77 Ga. App. 21 , 47 S.E.2d 662 , 1948 Ga. App. LEXIS 483 (1948).

Filing of bond or making of pauper affidavit is condition precedent to application to superior court for writ of certiorari. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954).

Petition must affirmatively show filing of bond or pauper affidavit and approval of clerk or judge. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954).

Failure to pay costs and give bond, or to make pauper’s affidavit renders certiorari void. Quinn v. O'Neal, 57 Ga. App. 248 , 194 S.E. 911 , 1938 Ga. App. LEXIS 549 (1938).

Writ of certiorari in civil case is void when issued before applicant has given bond, or has made and filed affidavit in forma pauperis, in lieu of such bond. Page v. White, 77 Ga. App. 21 , 47 S.E.2d 662 , 1948 Ga. App. LEXIS 483 (1948).

When it affirmatively appears from petition for certiorari that there was failure to give bond or to make pauper affidavit, such failure renders the petition for certiorari void and an absolute nullity, and the petition cannot proceed. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954).

Court was correct in dismissing petition for writ of certiorari when it affirmatively appeared from the petition that no attempt had been made to comply with requirements of section relative to making of proper bond or execution of proper pauper’s affidavit. Calloway v. Georgia Real Estate Comm'n, 89 Ga. App. 823 , 81 S.E.2d 540 , 1954 Ga. App. LEXIS 589 (1954).

Writ of certiorari is void, when the writ is issued in case where bond required by section, properly approved, has not been given. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300 , 175 S.E. 267 , 1934 Ga. App. LEXIS 371 (1934).

Dismissal or writ of certiorari proper. —

Certiorari is properly dismissed when record does not show that bond was filed with petition. Odom Bros. Co. v. Stovall, 28 Ga. App. 661 , 112 S.E. 907 , 1922 Ga. App. LEXIS 764 (1922).

Effect of failure to comply. —

Superior court acquires no jurisdiction of case when the party fails to comply with section. Hartsfield Co. v. Luddy, 45 Ga. App. 507 , 165 S.E. 452 , 1932 Ga. App. LEXIS 581 (1932).

Certiorari from municipal court proceeding regarding nuisance. —

Proceeding in municipal court to determine question of whether nuisance existed was not criminal or quasi criminal in nature since the court cannot fine or imprison the defendant in error, and bond required for certiorari is that provided for in former Code 1933, §§ 19-206, 19-207, and 19-208 (see O.C.G.A. § 5-4-5 ) for civil proceedings, and a bond under Code 1933, §§ 19-214, 19-215, and 19-216 (see O.C.G.A. § 5-4-20 ) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598 , 98 S.E.2d 216 , 1957 Ga. App. LEXIS 867 (1957).

Provisions of section are inapplicable to criminal cases. Brown v. State, 124 Ga. 411 , 52 S.E. 745 , 1905 Ga. LEXIS 727 (1905); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954) (decided under former Civil Code 1910, § 4185, now subsection (a) of this section).

Section inapplicable when certiorari is sought for review of conviction for violation of municipal ordinance. Ellett v. City of College Park, 233 Ga. 858 , 213 S.E.2d 700 , 1975 Ga. LEXIS 1465 (1975).

Judicial notice. —

Trial court erred by relying upon a county ordinance not properly in the record to support the court’s conclusion that a writ of certiorari was an appropriate method of judicial review of actions undertaken by a county planning commission in approving a developer’s plan to build a subdivision of town homes; as a result, the appellate court was precluded from reviewing the owners’ constitutional challenge to the ordinance. Monterey Cmty. Council v. DeKalb County Planning Comm'n, 281 Ga. App. 873 , 637 S.E.2d 488 , 2006 Ga. App. LEXIS 1274 (2006).

Construction with O.C.G.A. § 51-1-27 . —

Upon the grant of certiorari in a medical malpractice action filed by plaintiff parents against a pediatrician, a nurse, and others, a Georgia trial court did not abuse the court’s discretion by prohibiting the parents from showing that the nurse failed to pass the nursing board examination, as such evidence was irrelevant, and even if it could be said that the evidence had any probative value, it was substantially outweighed by the danger of undue prejudice. Snider v. Basilio, 281 Ga. 261 , 637 S.E.2d 40 , 2006 Ga. LEXIS 882 (2006).

Arbitration proceedings. —

Upon certiorari review, the Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata, as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361 , 638 S.E.2d 302 , 2006 Ga. LEXIS 1033 (2006).

Action under Dram Shop Act. —

Upon certiorari review, given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia’s Dram Shop Act, O.C.G.A. § 51-1-40(b) , the trial court erred in granting summary judgment to an injured party’s guardian, as the tavern’s manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern’s intoxicated patron’s would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312 , 647 S.E.2d 29 , 2007 Ga. LEXIS 471 (2007).

Bond

1.In General

Provisions of subsection (a) are mandatory. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954).

Bond must be given and approved before writ issues. —

Writ of certiorari in civil case, unless sued out in forma pauperis, is void if the writ be issued before applicant has given bond prescribed. Before writ of certiorari can properly issue it must appear from record that the writ has been duly approved, and to be duly approved the writ must, among other things, be approved before writ of certiorari issues. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712 , 169 S.E. 55 , 1933 Ga. App. LEXIS 208 (1933).

Bond is condition precedent to issuance of writ, but not to sanction of petition for certiorari. Smith v. McCranie, 14 Ga. App. 721 , 82 S.E. 307 , 1914 Ga. App. LEXIS 433 (1914); Gragg Lumber Co. v. Collins, 37 Ga. App. 76 , 139 S.E. 84 , 1927 Ga. App. LEXIS 467 (1927).

Bond is required when pauper affidavit is not filed. Simon v. Mayor of Savannah, 4 Ga. App. 171 , 60 S.E. 1036 , 1908 Ga. App. LEXIS 238 (1908); Tuten v. Showalter, 14 Ga. App. 690 , 82 S.E. 154 , 1914 Ga. App. LEXIS 423 (1914); Belk v. Cannon, 19 Ga. App. 487 , 91 S.E. 790 , 1917 Ga. App. LEXIS 184 (1917).

Certiorari bond need not be under seal. A.R. King & Co. v. Cantrell, 4 Ga. App. 263 , 61 S.E. 144 , 1908 Ga. App. LEXIS 258 (1908).

Bond is not void because the bond includes provision not authorized by section. Scott v. Oxford, 105 Ga. App. 301 , 124 S.E.2d 420 , 1962 Ga. App. LEXIS 920 (1962).

Bond complying with section need not bind parties to pay stated penal sum. —

When condition of bond complies with provisions of this section, fact that the bond does not bind parties to pay stated penal sum does not vitiate the bond. Bank of Am. Nat'l Trust & Sav. Ass'n v. Reserve Life Ins. Co., 90 Ga. App. 332 , 83 S.E.2d 66 , 1954 Ga. App. LEXIS 704 (1954).

Bond providing for payment of future costs, but not for recovery sought. —

When plaintiff in certiorari has paid accrued costs and given bond providing for payment of all future costs, but not providing for payment of eventual condemnation money, the plaintiff has substantially complied with statute. Hartsfield Co. v. Luddy, 45 Ga. App. 507 , 165 S.E. 452 , 1932 Ga. App. LEXIS 581 (1932) (see O.C.G.A. § 5-4-2 ).

Bond providing penalty for less than amount sought as award. —

When bond pursuant to section provides for penalty of $20.00 and $20.00 is insufficient to meet sum sought as award, bond is insufficient and certiorari should be dismissed. Gullatt v. Blankenship, 42 Ga. App. 139 , 155 S.E. 353 , 1930 Ga. App. LEXIS 262 (1930).

Party taking bond cannot delegate right under subsection (b) to justification by surety. —

When party taking bond is State Personnel Board, by a majority of the board’s members, nothing in the law gives it the right to delegate the board’s right to justification by surety to any other officer. The board alone has power to approve or disapprove bond, and such authority cannot be exercised even by judge of superior court, or by clerk of trial court. When there is no approval of bond by judicial officer, writ must be dismissed. Scott v. Oxford, 105 Ga. App. 301 , 124 S.E.2d 420 , 1962 Ga. App. LEXIS 920 (1962).

Best way to show that proper bond has been given is to attach to petition a certified copy of the bond, with certificate of approval by proper officer, and allege affirmatively that bond was given and approved as required by law. Beard v. City of Atlanta, 91 Ga. App. 584 , 86 S.E.2d 672 , 1955 Ga. App. LEXIS 815 (1955).

Bond filed with first petition does not meet requirements of law as to a second petition. Yield, Inc. v. City of Atlanta, 152 Ga. App. 171 , 262 S.E.2d 481 , 1979 Ga. App. LEXIS 2855 (1979).

Clerk not authorized to refuse to accept and approve bond request. —

Court clerk was not authorized to refuse to accept and approve the petitioner’s request for a supersedeas bond on the grounds that the petitioner failed to satisfy the requirements of O.C.G.A. § 5-4-5(a) , that the petitioner was not authorized to dismiss and renew a petition for a writ of certiorari, and that, given that the petitioner was not authorized to renew the petition for certiorari, the petitioner’s renewed petition was untimely because the petition fell outside of the discretionary authority granted to the clerk under O.C.G.A. § 5-4-20 . Adams v. Neykov, 356 Ga. App. 884 , 849 S.E.2d 712 , 2020 Ga. App. LEXIS 548 (2020).

2.Execution and Attestation

Certiorari bond may be executed by an agent. Porterfield v. City of La Grange, 60 Ga. App. 646 , 4 S.E.2d 732 , 1939 Ga. App. LEXIS 128 (1939).

Authority of agent to sign bond will be presumed, unless rebutted. Georgia-Alabama Bus. College v. Constitution Publishing Co., 8 Ga. App. 348 , 69 S.E. 34 , 1910 Ga. App. LEXIS 159 (1910).

Agent or attorney authorized to represent party in case may give bond. —

Bond shall be given by party personally, or by the party’s agent, either general or special, who is authorized to represent party in that particular case, or by attorney whose employment includes services in that case or who is authorized by party to give bond. Alabama M. Ry. v. Stevens, 116 Ga. 790 , 43 S.E. 46 , 1902 Ga. LEXIS 264 (1902).

Bond must be signed by surety. —

When bond given by plaintiff in certiorari was not signed by any person or corporation as surety, the only signature thereto being that of principal (the plaintiff in certiorari), bond given did not meet requirements of section. Gleason v. Burgess, 46 Ga. App. 486 , 167 S.E. 916 , 1933 Ga. App. LEXIS 115 (1933).

When agent of surety signs bond, authority must expressly appear. —

When on certiorari from trial court, certiorari bond is signed by one as agent for surety named thereon, authority of such agent must expressly appear. Taylor v. City of Atlanta, 84 Ga. App. 739 , 67 S.E.2d 143 , 1951 Ga. App. LEXIS 781 (1951); Edwards v. City of Atlanta, 88 Ga. App. 329 , 76 S.E.2d 635 , 1953 Ga. App. LEXIS 1076 (1953).

When plaintiff sues on non-severable cause of action, both parties must sign bond, absent authority to the contrary. Harwell v. Marshall, 125 Ga. 451 , 54 S.E. 93 , 1906 Ga. LEXIS 191 (1906).

When corporation is surety, bond signed by the corporation’s attorney must be accompanied by power of attorney. Hunter v. Lanier, 74 Ga. App. 177 , 39 S.E.2d 79 , 1946 Ga. App. LEXIS 480, 1946 Ga. App. LEXIS 481 (1946).

Bond for partnership. —

When applicant for writ of certiorari is a partnership and bond required by section is not signed in firm name, nor by one professing to act for the partnership, proceedings are void. Camp, Saunders & Co. v. Bacon Fruit Co., 117 Ga. 149 , 43 S.E. 425 , 1903 Ga. LEXIS 178 (1903).

Commercial notary may attest signatures to certiorari bond. Hendrix & McBurney v. Mason, 70 Ga. 523 , 1883 Ga. LEXIS 367 (1883).

Any attesting officer may witness a certiorari bond. Southern Ry. v. Oliver, 13 Ga. App. 5 , 78 S.E. 684 , 1913 Ga. App. LEXIS 2 (1913).

3.Approval

Bond must be approved by judge or justice of court in which case was originally tried. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712 , 169 S.E. 55 , 1933 Ga. App. LEXIS 208 (1933).

Approval of bond required. —

Bond given under section, to render the bond effectual, must in some manner be approved by judge or justice of court in which case was originally tried. Stover v. Doyle, 114 Ga. 85 , 39 S.E. 939 , 1901 Ga. LEXIS 581 (1901).

Applicability to petitions from appellate division of municipal court of Atlanta. —

There being no special provision of law for any different procedure governing manner in which application for issuance of writ of certiorari may be made when directed to presiding judge of appellate division of Municipal Court of Atlanta, the bond required of petitioner in such a case must be properly and duly approved by presiding magistrate as condition precedent to issuing of writ of certiorari. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712 , 169 S.E. 55 , 1933 Ga. App. LEXIS 208 (1933).

Trial judge must certify that amount of bond is approved and costs have been paid. —

Under this section, it is necessary that in all applications for certiorari in civil cases bond be given in amount approved by trial judge and that such judge certify under the judge’s own signature that bond has been approved and that costs have been paid; otherwise, certiorari is void. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 , 120 S.E.2d 674 , 1961 Ga. App. LEXIS 1054 (1961).

Fact of approval of bond given under section, must appear upon papers themselves. State v. Wynne, 4 Ga. App. 719 , 62 S.E. 499 , 1908 Ga. App. LEXIS 520 (1908).

Approval may appear on face of bond. Dykes v. Twiggs County, 115 Ga. 698 , 42 S.E. 36 , 1902 Ga. LEXIS 538 (1902); Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83 , 102 S.E. 460 , 1920 Ga. App. LEXIS 609 (1920).

Bond cannot be approved by anyone other than judge or justice of trial court. Southern Ry. v. Oliver, 13 Ga. App. 5 , 78 S.E. 684 , 1913 Ga. App. LEXIS 2 (1913).

Clerk of court cannot approve bond. Tippins v. De Loach, 9 Ga. App. 362 , 71 S.E. 497 , 1911 Ga. App. LEXIS 553 (1911).

Approval of bond by clerk, or certification by clerk or other officer that costs have been paid, is insufficient. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757 , 120 S.E.2d 674 , 1961 Ga. App. LEXIS 1054 (1961).

Commercial notary public cannot approve bond. Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83 , 102 S.E. 460 , 1920 Ga. App. LEXIS 609 (1920).

Magistrate’s statement that bond and security has been given. —

Statement by trial magistrate in the magistrate’s certificate to petition for certiorari, that the petitioner has given bond and security as required by law, is not an equivalent, nor a sufficient substitute, for the magistrate’s approval of a certiorari bond. If bond is unapproved at date of the bond’s filing with the petition, the bond is insufficient to authorize the clerk to issue a writ, and no subsequent approval which might be implied from the magistrate’s certificate or otherwise can cure a deficiency. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712 , 169 S.E. 55 , 1933 Ga. App. LEXIS 208 (1933).

No subsequent action approving or ratifying bond will save certiorari from dismissal. State v. Wynne, 4 Ga. App. 719 , 62 S.E. 499 , 1908 Ga. App. LEXIS 520 (1908); Butters Mfg. Co. v. Fraley, 46 Ga. App. 712 , 169 S.E. 55 , 1933 Ga. App. LEXIS 208 (1933).

Costs

Hearing officer could not waive bond requirement. —

Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a) , the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381 , 620 S.E.2d 616 , 2005 Ga. App. LEXIS 970 (2005), cert. denied, No. S06C0148, 2006 Ga. LEXIS 28 (Ga. Jan. 17, 2006).

1.In General

Requirement that costs be paid is intended for protection of officers. Johns v. Lewis Drug Co., 120 Ga. 640 , 48 S.E. 127 , 1904 Ga. LEXIS 662 (1904).

Costs must be paid, not merely deposited. Abrahams v. Ryan, 61 Ga. 597 , 1878 Ga. LEXIS 192 (1878).

Costs include costs accrued on trial resulting in verdict excepted to, but not costs accrued on previous hearings. Johns v. Lewis Drug Co., 120 Ga. 640 , 48 S.E. 127 , 1904 Ga. LEXIS 662 (1904); Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418 , 121 S.E. 854 , 1923 Ga. App. LEXIS 966 (1923).

2.Certificate

Writ may be sanctioned, although certificate of payment of costs is not filed. Fuller v. Arnold, 64 Ga. 599 , 1880 Ga. LEXIS 366 (1880).

Applicability to Municipal Court of Atlanta. —

There is nothing in act creating Municipal Court of Atlanta, or in any of the Acts amendatory thereof, which could be taken to change rule with respect to necessity of signing certificate as to costs by officer whose decision is subject-matter of complaint. Thoms v. John R. Thompson Co., 38 Ga. App. 779 , 145 S.E. 533 , 1928 Ga. App. LEXIS 450 (1928).

No certificate of payment of costs is required in forcible entry and detainer case. Taylor v. Gay, 20 Ga. 77 , 1856 Ga. LEXIS 15 (1856).

Certificate not required when second writ of certiorari was procured under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61 ), when the first writ in the same case was dismissed. Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418 , 121 S.E. 854 , 1923 Ga. App. LEXIS 966 (1923).

Receipt of costs may satisfy requirement of certificate that costs have been paid. Western & Atl. R.R. v. Carder, 120 Ga. 460 , 47 S.E. 930 , 1904 Ga. LEXIS 587 (1904).

Statements held insufficient. —

Mere statement that costs of certiorari in municipal court have been paid is insufficient. Osborn v. Osborn, 70 Ga. 716 , 1883 Ga. LEXIS 410 (1883).

Statement that all costs but three dollars allowed to garnishee for answering garnishment was insufficient. Buchanan v. Satterwhite, 22 Ga. App. 23 , 95 S.E. 309 , 1918 Ga. App. LEXIS 111 (1918).

Certificate made by clerk of court is insufficient. Davis v. Joiner, 1 Ga. App. 106 , 58 S.E. 62 , 1907 Ga. App. LEXIS 157 (1907).

Judge of superior court did not err in dismissing petition for certiorari which was accompanied by certificate as to payment of costs, signed only by deputy clerk of municipal court. Thoms v. John R. Thompson Co., 38 Ga. App. 779 , 145 S.E. 533 , 1928 Ga. App. LEXIS 450 (1928).

Affidavit of Indigence

1.In General

Language of subsection (c) is plain and mandatory. Garvin v. Ray, 174 Ga. 905 , 164 S.E. 677 , 1932 Ga. LEXIS 170 (1932); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815 , 81 S.E.2d 535 , 1954 Ga. App. LEXIS 588 (1954).

Writ of certiorari may be sanctioned even when improper affidavit has been filed with the clerk, but valid writ of certiorari may not issue in such case. Smith v. McCranie, 14 Ga. App. 721 , 82 S.E. 307 , 1914 Ga. App. LEXIS 433 (1914).

2.Contents

What must affidavit state. —

Affidavit should allege that owing to poverty affiant is unable to give required security; merely stating that affiant is unable to give security, as required by law, is not sufficient. Roberts v. Selman, 34 Ga. App. 171 , 128 S.E. 694 , 1925 Ga. App. LEXIS 110 (1925).

Affidavit must state applicant is advised and believes applicant has good cause. —

When affidavit in lieu of bond does not recite that applicant is advised and believes that the applicant has good cause for certiorari application is not sustainable. Williams v. Williams, 117 Ga. App. 161 , 159 S.E.2d 456 , 1968 Ga. App. LEXIS 1014 (1968).

Omission of declaration in pauper affidavit that applicant “is advised” renders affidavit fatally defective. Garvin v. Ray, 174 Ga. 905 , 164 S.E. 677 , 1932 Ga. LEXIS 170 (1932).

Affidavit must state affiant is advised and believes the affiant has good cause for certiorari. Dorsey v. Black, 55 Ga. 315 , 1875 Ga. LEXIS 416 (1875); Belk v. Cannon, 19 Ga. App. 487 , 91 S.E. 790 , 1917 Ga. App. LEXIS 184 (1917).

Applicant making affidavit stating only inability to pay costs. —

When applicant for certiorari does not pay costs and give bond with security or make affidavit that owing to the applicant’s poverty the applicant was unable to pay costs or give security, but makes affidavit only that the applicant is unable to pay costs, the judge of superior court may properly dismiss certiorari. Quinn v. O'Neal, 57 Ga. App. 248 , 194 S.E. 911 , 1938 Ga. App. LEXIS 549 (1938).

Affidavit stating party is unable to pay costs “and” rather than “or” give security is insufficient and writ issued in such case should be dismissed. Hackett v. Tate, 18 Ga. App. 453 , 89 S.E. 535 , 1916 Ga. App. LEXIS 1014 (1916).

Writ of certiorari is void when pauper affidavit allowed in lieu of bond uses conjunctive “and,” the pauper is unable to pay costs and give security instead of disjunctive “or,” as required by section. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300 , 175 S.E. 267 , 1934 Ga. App. LEXIS 371 (1934).

3.Who May Make Affidavit

Minor with sufficient discretion may make a pauper affidavit. Bowers v. Kanaday, 94 Ga. 209 , 21 S.E. 458 , 1894 Ga. LEXIS 49 (1894).

Agent cannot make a pauper affidavit. Hadden v. Larned, 83 Ga. 636 , 10 S.E. 278 , 1889 Ga. LEXIS 126 (1889).

Attorney at law cannot make a pauper affidavit. Selma, R. & D.R.R. v. Tyson, 48 Ga. 351 , 1873 Ga. LEXIS 64 (1873).

Personal affidavit of partner cannot operate in favor of firm. Marlow & Bro. v. Hughes Lumber Co., 92 Ga. 554 , 17 S.E. 922 , 1893 Ga. LEXIS 178 (1893).

General Consideration

Editor’s note. —

In light of the similarity of the statutory provisions, decisions under former Code 1933, § 19-212 are included in the annotations of this Code section.

Dismissal proper when respondent does not answer. —

In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. § 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. § 5-4-7 , dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. § 5-4-3 . Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304 , 840 S.E.2d 708 , 2020 Ga. App. LEXIS 166 (2020).

Time for Filing Application

1.In General

Provisions of subsection (a) are mandatory. —

Provisions of section are absolute and mandatory in respect of time within which writs of certiorari shall be applied for, and cannot be varied or departed from in exercise of any judicial discretion. Hitt v. City of Atlanta, 103 Ga. App. 717 , 120 S.E.2d 339 , 1961 Ga. App. LEXIS 1039 (1961).

Petition must be presented within thirty days from rendition of verdict, if the petition does not complain of error in dismissing motion for new trial. Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422 , 115 S.E. 924 , 1923 Ga. App. LEXIS 50 (1923).

Application for writ of certiorari must be made within 30 days of final determination of case in inferior court. Eisenberg v. Fuller, 148 Ga. App. 603 , 252 S.E.2d 17 , 1979 Ga. App. LEXIS 1566 (1979).

Failure to obtain the requisite sanction from the appropriate judge is not an amendable defect if the 30-day time requirement for applying for certiorari under O.C.G.A. § 5-4-6(a) has expired. Cobb County v. Herren, 230 Ga. App. 482 , 496 S.E.2d 558 , 1998 Ga. App. LEXIS 194 (1998), cert. denied, No. S98C0815, 1998 Ga. LEXIS 537 (Ga. May 14, 1998).

Although a trial court’s decision to dismiss an action by dismissed city employees was erroneously based on the court’s determination that the employees had failed to exhaust their administrative remedies from their claim that the reduction-in-force ordinance, Atlanta, Ga., Code § 114-55, was not properly followed, as they had properly appealed to the Service Board and the Board had denied their claims on appeal, the dismissal was proper for other reasons; after the Board’s final decision denying the employees’ appeals, the employees failed to properly and timely file a writ of certiorari in the trial court pursuant to O.C.G.A. §§ 5-4-1(a) and 5-4-6 in order to obtain review of that decision. Jordan v. City of Atlanta, 283 Ga. App. 285 , 641 S.E.2d 275 , 2007 Ga. App. LEXIS 37 (2007).

When judgment is not final, subsequent judgments pertaining to it are not final. —

When verdict and judgment rendered in Municipal Court of Atlanta is not a final judgment, neither judgment of trial judge overruling motion for new trial excepting to such verdict and judgment, nor judgment of appellate division of that court affirming such judgment of trial judge, is a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64 , 160 S.E. 560 , 1931 Ga. App. LEXIS 598 (1931).

Filing of mandamus action does not excuse compliance with section. —

Because certiorari and mandamus are completely different remedies as to subject matter, procedure, and nature of relief, filing a mandamus action does not excuse compliance with requirements of this section. Richardson v. Rector, 134 Ga. App. 116 , 213 S.E.2d 488 , 1975 Ga. App. LEXIS 1927 (1975).

Mandamus not appropriate remedy for homeowners denied building permit. —

Mandamus was not the appropriate remedy for homeowners whose building permit had been denied by a city; rather, the homeowners were required to pursue the homeowners’ appeal through the filing of a petition for a writ of certiorari, pursuant to Statesboro, Ga., Zoning Ordinance § 1809 and O.C.G.A. § 5-4-1(a) ; moreover, the homeowners’ appeal was untimely under O.C.G.A. § 5-4-6(a) . City of Statesboro v. Dickens, 293 Ga. 540 , 748 S.E.2d 397 , 2013 Ga. LEXIS 647 (2013).

Section does not deal with means of preserving exceptions to trial court rulings. —

This section merely limits time after final judgment in which writ of certiorari may be applied for, but does not attempt to go into manner in which exceptions to orders and rulings prior to final judgment may be preserved. Taylor v. Golian Steel & Iron Co., 86 Ga. App. 639 , 72 S.E.2d 196 , 1952 Ga. App. LEXIS 1025 (1952).

Certiorari from appeals in justice’s court are from jury verdict. —

It is from verdict of jury in appeal cases in justice’s court that certiorari may be taken, not from judgment which justice may enter thereon. Western & A.R.R. v. Carson, 70 Ga. 388 , 1883 Ga. LEXIS 343 (1883).

Fact of timely application must appear from record, unless answer of justice verifies that fact. Duke v. Story, 113 Ga. 112 , 38 S.E. 337 , 1901 Ga. LEXIS 172 (1901); Landrum v. Moss, 1 Ga. App. 216 , 57 S.E. 965 , 1907 Ga. App. LEXIS 195 (1907).

Section governs time for second application when first application dismissed for noncompliance. —

When application for certiorari is a nullity, because of failure to comply with the requirement as to bond, time within which second application may be made was governed by former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6 ), and was not extended by law as to renewal of cases within six months after dismissal under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61 ). Tuten v. Showalter, 14 Ga. App. 690 , 82 S.E. 154 , 1914 Ga. App. LEXIS 423 (1914); Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422 , 115 S.E. 924 , 1923 Ga. App. LEXIS 50 (1923).

Renewal of previously dismissed, but timely certiorari in same cause. —

When certiorari is applied for after expiration of statutory period from date of judgment complained of, petition should show on the petition’s face that the petition is a renewal of a previously dismissed certiorari sued out within proper time in same cause, and that renewal is within six months from date of dismissal of previous certiorari. Unless all of these facts appear in petition for certiorari, the judge of superior court has no jurisdiction of case, and should refuse to sanction petition; and, if such petition is sanctioned, it should be dismissed when proper motion therefor is made upon hearing of certiorari. Smith v. City of Atlanta, 48 Ga. App. 853 , 174 S.E. 171 , 1934 Ga. App. LEXIS 229 (1934).

Valid writ of error suspends running of time limit for application for writ of certiorari. Gavant v. Berger, 51 Ga. App. 628 , 181 S.E. 210 , 1935 Ga. App. LEXIS 425 (1935).

Time ran from denial of motion to set aside default judgment, not default judgment itself. —

In a dispute between a seller of storage units and the buyer’s spouse, resulting in a default judgment for the seller in magistrate court, the superior court erred in dismissing the spouse’s petition for certiorari as untimely because the petition was filed within 30 days of the denial of the spouse’s motion to set aside as required by O.C.G.A. § 5-4-6(a) ; it was not required that the motion be filed within 30 days of the default judgment. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332 , 825 S.E.2d 817 , 2019 Ga. App. LEXIS 162 (2019).

Timely petition was improperly dismissed. —

Superior court improperly dismissed as untimely appellant city’s petition for a writ of certiorari challenging a civil service board’s decision as the petition was timely filed for purposes of O.C.G.A. § 5-4-6(a) since: (1) the last day to file the petition fell on Thanksgiving Day; (2) the Friday after Thanksgiving day, like Thanksgiving day, was a legal holiday as set forth in O.C.G.A. § 1-4-1 ; and (3) the petition was filed on the very next business day, as allowed by O.C.G.A. § 1-3-1(d)(3). City of Atlanta v. Hector, 256 Ga. App. 665 , 569 S.E.2d 600 , 2002 Ga. App. LEXIS 993 (2002).

Eleventh of November, although a legal holiday, is included in computing 30-day period. —

In computing 30 days within which petition for certiorari must be presented eleventh of November, although a legal holiday and last day, must be included. Freeman v. Beneficial Loan Soc'y, 42 Ga. App. 294 , 155 S.E. 786 , 1930 Ga. App. LEXIS 367 (1930).

2.What Are Final Judgments

Writ of certiorari lies only after rendition of judgment making final disposition of case, and then only to correct errors which affect such final judgment. It does not lie to correct errors affecting only judgment which is not final. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64 , 160 S.E. 560 , 1931 Ga. App. LEXIS 598 (1931).

Writ of certiorari lies only after rendition of final judgment. Hayes v. Brown, 205 Ga. 234 , 52 S.E.2d 862 , 1949 Ga. LEXIS 335 (1949).

Final disposition of case in inferior court is prerequisite to writ of certiorari. Singer Mfg. Co. v. McNeal Paint & Glass Co., 117 Ga. 1005 , 44 S.E. 801 , 1903 Ga. LEXIS 408 (1903).

Absent final judgment, court is correct in refusing to act. —

When there has been no final judgment rendered by the state court, the superior court is correct in refusing to exercise the superior court’s supervisory powers through a writ of certiorari. Attwell v. Sears Roebuck & Co., 159 Ga. App. 811 , 285 S.E.2d 199 , 1981 Ga. App. LEXIS 2826 (1981).

Judgment of justice of peace, refusing to allow amendment to petition is not final determination. Felker v. Freeman, 46 Ga. App. 767 , 169 S.E. 247 , 1933 Ga. App. LEXIS 235 (1933).

Verdict and judgment against special plea of no partnership is not a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64 , 160 S.E. 560 , 1931 Ga. App. LEXIS 598 (1931).

Judgment sustaining motion to dismiss and granting leave to amend is not final judgment, judgment sustaining demurrer (now motion to dismiss) to petition, which grants leave to plaintiff to amend on pain of dismissing suit, is not a final judgment, and certiorari does not lie thereto. Massengale v. Colonial Hill Co., 34 Ga. App. 807 , 131 S.E. 299 , 1926 Ga. App. LEXIS 51 (1926).

Notice

Service on the opposite party within five days is mandatory and in the absence of such service the application for certiorari is properly dismissed. City of Atlanta v. Saunders, 159 Ga. App. 566 , 284 S.E.2d 77 , 1981 Ga. App. LEXIS 2696 (1981).

Provisions for notice to opposite party are mandatory. Glover v. Berry Sch., 90 Ga. App. 232 , 83 S.E.2d 22 , 1954 Ga. App. LEXIS 671 (1954) (decided under former Code 1933, § 19-212).

Notice to opposite party is required unless prevented by unavoidable cause or waived in writing. —

Notice to be given to opposite party in interest, that party’s agent, or attorney, unless prevented by unavoidable cause or unless waived in writing, and when such notice is not given and it is not shown to be due to unavoidable cause, certiorari shall be dismissed unless waived in writing. Attebery v. City of Manchester, 76 Ga. App. 265 , 45 S.E.2d 781 , 1947 Ga. App. LEXIS 429 (1947) (decided under former Code 1933, § 19-212).

Service must be made diligently. —

Although an employee failed to serve the city with a copy of a petition for certiorari within five days as required by O.C.G.A. § 5-4-6(b) , the trial court was required to determine whether service was made in a reasonable and diligent manner to effectuate service as quickly as possible. Mangram v. City of Brunswick, 324 Ga. App. 725 , 751 S.E.2d 523 , 2013 Ga. App. LEXIS 921 (2013).

Failure to serve writ on judge whose decision is to be reviewed. —

When it appears that the writ of certiorari has not been served upon the judge, or other officer whose decision is sought to be reviewed, 15 days previous to the term of court to which the return is to be made, the proceeding should be dismissed, unless it clearly appears that the failure to serve was in no way attributable to the fault of the party making application for the writ. City of Atlanta v. Saunders, 159 Ga. App. 566 , 284 S.E.2d 77 , 1981 Ga. App. LEXIS 2696 (1981).

Failure to serve judge, not basis for dismissal. —

Failure to properly serve respondent, a municipal court judge whose decision was being reviewed, was not a basis for dismissal when the judge made a general appearance and addressed the merits of the case. Hudson v. Watkins, 225 Ga. App. 455 , 484 S.E.2d 24 , 1997 Ga. App. LEXIS 271 (1997), cert. denied, No. S97C1102, 1997 Ga. LEXIS 768 (Ga. Sept. 5, 1997).

Failure to serve city. —

“Opposite party” in a case of certiorari from a municipal court was the city, not the municipal court judge, and failure to serve the city warranted dismissal of the petition. Hudson v. Watkins, 225 Ga. App. 455 , 484 S.E.2d 24 , 1997 Ga. App. LEXIS 271 (1997), cert. denied, No. S97C1102, 1997 Ga. LEXIS 768 (Ga. Sept. 5, 1997).

Superior court erred in denying the city board of appeals’ motion to dismiss a petition for writ of certiorari because the service of the original petition upon the city attorney was not sufficient service upon the city as an opposite party when the city was not named as the opposite party, and only the board and the board’s members were named in the original petition as the board (as respondent) and the city (as the proper opposite party) were two separate entities with possibly conflicting interests. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551 , 801 S.E.2d 599 , 2017 Ga. App. LEXIS 245 (2017), cert. denied, No. S17C1839, 2017 Ga. LEXIS 1010 (Ga. Dec. 11, 2017).

Failure to serve board. —

Superior court did not err in dismissing petition for certiorari from a decision of the Atlanta Civil Service Board, since the board was not named as a party as required by subsection (b) of O.C.G.A. § 5-4-6 , and service of the petition on the City of Atlanta was not service on the City of Atlanta Civil Service Board as a matter of law. Fisher v. City of Atlanta, 212 Ga. App. 635 , 442 S.E.2d 762 , 1994 Ga. App. LEXIS 365 (1994).

Although the city board of appeals was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, the superior court erred in denying the board’s motion to dismiss because there was a failure to comply with the statutory requirements as no writ had been issued and served; and, while it was the clerk’s duty to issue the writ, it was also separately the duty of the petitioner or the petitioner’s counsel to ensure that a writ was served, and the petitioner could not completely divorce itself from the failure that occurred in the current case. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551 , 801 S.E.2d 599 , 2017 Ga. App. LEXIS 245 (2017), cert. denied, No. S17C1839, 2017 Ga. LEXIS 1010 (Ga. Dec. 11, 2017).

Superior court erred in denying the city board of appeals’ motion to dismiss a petition for writ of certiorari because there was a complete failure to even issue a writ of certiorari, let alone serve the same upon the board as the respondent; and the petitioner failed to name the city as an opposite party, and failed to serve the city with a copy of the petition and with a copy of the writ in the time required. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551 , 801 S.E.2d 599 , 2017 Ga. App. LEXIS 245 (2017), cert. denied, No. S17C1839, 2017 Ga. LEXIS 1010 (Ga. Dec. 11, 2017).

O.C.G.A. § 5-4-10 may not be utilized to permit service beyond time permitted in O.C.G.A. § 5-4-6 . City of Atlanta v. Saunders, 159 Ga. App. 566 , 284 S.E.2d 77 , 1981 Ga. App. LEXIS 2696 (1981).

It is the actual filing of petition in clerk’s office which gives the petition validity, but the petition cannot have any validity as such unless the petition is actually filed with the custodian upon whom the law casts duty of receiving the petition. Hunter v. City of Blue Ridge, 79 Ga. App. 719 , 54 S.E.2d 510 , 1949 Ga. App. LEXIS 730 (1949).

Giving of required notice must affirmatively appear from certiorari proceedings. —

When it does not affirmatively appear from certiorari proceedings that required notice or a waiver thereof was given, proceedings are fatally defective, and superior court does not err in overruling and denying petition for certiorari. Williams v. State, 91 Ga. App. 124 , 85 S.E.2d 91 , 1954 Ga. App. LEXIS 877 (1954).

Personal service upon respondent is required. Gornto v. City of Brunswick, 119 Ga. App. 673 , 168 S.E.2d 323 , 1969 Ga. App. LEXIS 1208 (1969).

Failure to comply with subsection (b) renders petition and writ invalid. —

When certiorari was dismissed for want of compliance with provisions of former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6 ), petition for certiorari and writ of certiorari were invalid, and for this reason there was no case pending which could be recommenced within six months as provided in § 9-2-61 . Butters Mfg. Co. v. Sims, 47 Ga. App. 648 , 171 S.E. 162 , 1933 Ga. App. LEXIS 589 (1933) (decided under former Code 1933, § 19-210, prior to amendment by Ga. L. 1961, p. 190, § 3, now embodied in subsection (b) of O.C.G.A. § 5-4-6 ).

Jurisdiction over appeal from dismissal of petition for failure of service. —

When sole question for review on appeal is dismissal of petition for certiorari because of failure of service, the Court of Appeals has jurisdiction of the appeal. Gornto v. City of Brunswick, 225 Ga. 128 , 166 S.E.2d 349 , 1969 Ga. LEXIS 398, transferred, 119 Ga. App. 673 , 168 S.E.2d 323 , 1969 Ga. App. LEXIS 1208 (1969).

Failure to give notice to opposite party shall be mandatory ground for dismissal of certiorari unless prevented by unavoidable cause, or unless waived. Glover v. Berry Sch., 90 Ga. App. 232 , 83 S.E.2d 22 , 1954 Ga. App. LEXIS 671 (1954) (decided under former Code 1933, § 19-212).

Failure to give notice to opposite party is fatal to proceedings and subjects the proceedings to dismissal at any time before final judgment. Goldberg v. City of Atlanta, 71 Ga. App. 269 , 30 S.E.2d 661 , 1944 Ga. App. LEXIS 329 (1944) (decided under former Code 1933, § 19-212).

Acknowledgment of service does not estop one from claiming service was untimely. —

Mere acknowledgment of service of notice of sanction of writ of certiorari does not estop person making acknowledgment from setting up that the same was, under the law relating thereto, served too late. Scott v. State, 75 Ga. App. 684 , 44 S.E.2d 391 , 1947 Ga. App. LEXIS 617 (1947) (decided under former Code 1933, § 19-212).

General Consideration

Answer provides source of facts of case and rulings for reviewing court. —

In certiorari case, answer of trial judge is only source from which knowledge of facts of case and rulings therein can be derived by reviewing court. Adams v. Bishop, 46 Ga. App. 32 , 166 S.E. 460 , 1932 Ga. App. LEXIS 16 (1932).

Only answer of justice embodies and can identify evidence before jury in the justice’s court. Akridge v. Watertown Steam Engine Co., 77 Ga. 50 , 1886 Ga. LEXIS 281 (1886).

If answer is not traversed, the answer becomes part of record. Mossman v. McKinley, 67 Ga. 391 , 1881 Ga. LEXIS 191 (1881).

Burden is on applicant to cause timely answer by magistrate. —

Burden is on applicant for certiorari to cause magistrate’s answer to be filed within 30 days of service. Schaffer v. City of Atlanta, 151 Ga. App. 1 , 258 S.E.2d 674 , 1979 Ga. App. LEXIS 2411 (1979), rev'd, 245 Ga. 164 , 264 S.E.2d 6 , 1980 Ga. LEXIS 727 (1980).

Petition shall not be dismissed for insufficient affidavit when answer supports petition. —

That affidavit in support of petition for certiorari is insufficient is no ground for dismissal after certiorari has been answered, if answer supports petition. Taylor v. Gay, 20 Ga. 77 , 1856 Ga. LEXIS 15 (1856).

Dismissal under section due to petitioner’s failure to act timely. —

When plaintiff in certiorari was at fault, in failing to make appropriate motion in due time, and dismissal under former Code 1933, § 19-301 (see O.C.G.A. § 5-4-7 ) results from this fault, and not from bare failure of judge to file the judge’s answer, such dismissal will not be affected by former Code 1933, § 19-502 (see O.C.G.A. § 5-4-15 ), which provided that when the trial judge dies before making the judge’s answer to certiorari filed on the judge, a new trial will be granted. Mathis v. City of Nashville, 49 Ga. App. 309 , 175 S.E. 383 , 1934 Ga. App. LEXIS 377 (1934).

Dismissal proper when respondent does not answer. —

In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. § 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. § 5-4-7 , dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. § 5-4-3 . Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304 , 840 S.E.2d 708 , 2020 Ga. App. LEXIS 166 (2020).

Authority of trial court to grant extension of time to file answer. —

Trial court did not err by failing to dismiss the petition for writ of certiorari because the board failed to file the board’s answer within 30 days of service of the writ as required by O.C.G.A. § 5-4-7 as due to alleged technical difficulties with the electronic filing system, the board was unable to file the answer by the deadline and it was within the trial court’s authority to grant the extension of time to the board to file the board’s answer. Milani v. Irwin, 354 Ga. App. 218 , 840 S.E.2d 700 , 2020 Ga. App. LEXIS 147 (2020).

Content and Sufficiency of Answer

Return or answer must constitute verification or denial, from record or otherwise, of material assertions in petition. Herault v. Department of Human Resources, 137 Ga. App. 446 , 224 S.E.2d 480 , 1976 Ga. App. LEXIS 2481 (1976).

Answer should contain evidence in case or adopt statement of evidence contained in petition for certiorari in whole or in part. Norris v. Sibert & Robinson, 53 Ga. App. 440 , 186 S.E. 199 , 1936 Ga. App. LEXIS 149 (1936) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Sufficiency of answer is to be determined by whether it sufficiently verifies factual situation upon which alleged errors are predicated. Herault v. Department of Human Resources, 137 Ga. App. 446 , 224 S.E.2d 480 , 1976 Ga. App. LEXIS 2481 (1976).

Answer substantially complying with section. Lunsford v. State, 60 Ga. App. 537 , 4 S.E.2d 112 , 1939 Ga. App. LEXIS 75 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Better practice when trial judge does not care to categorically admit or deny allegations of various paragraphs of petition for certiorari, but desires to stand on stenographic report of proceedings as truth of matters alleged, is in the judge’s answer to each paragraph containing allegations as to evidence, objections of counsel, and rulings of the court, to quote pertinent part of report in reference to allegations made in each paragraph, instead of merely admitting allegations except insofar as the allegations may conflict with stenographic report attached. Lunsford v. State, 60 Ga. App. 537 , 4 S.E.2d 112 , 1939 Ga. App. LEXIS 75 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).

Answer from memory will suffice, if testimony was recollected. Colbert v. State, 118 Ga. 302 , 45 S.E. 403 , 1903 Ga. LEXIS 540 (1903); Harris v. Daly, 121 Ga. 511 , 49 S.E. 609 , 1904 Ga. LEXIS 216 (1904).

Original papers from trial court are not to be sent up on certiorari. Barfield v. McCombs, 89 Ga. 799 , 15 S.E. 666 , 1892 Ga. LEXIS 459 (1892).

Certificate of magistrate, required by former Civil Code 1910, §§ 5185, 5186, 5187 (see O.C.G.A. § 5-4-5 ) before sanction of certiorari will not operate as answer. Henry v. American Ry. Express Co., 25 Ga. App. 646 , 104 S.E. 16 , 1920 Ga. App. LEXIS 128 (1920).

General Consideration

Distinction between function of exceptions and function of traverse. —

Function of exceptions to answer of magistrate to petition for certiorari is to specify defects in such answer, and such exceptions do not take place of traverse to answer whose function is to controvert truth of facts set forth in answer. West v. State, 103 Ga. App. 71 , 118 S.E.2d 491 , 1961 Ga. App. LEXIS 860 (1961).

Traverse of answer of trial judge must be verified affidavit. West v. State, 103 Ga. App. 71 , 118 S.E.2d 491 , 1961 Ga. App. LEXIS 860 (1961).

Absent traverse, answer is conclusive as to recital of facts. —

Upon trial of certiorari when judge’s answer to petition is untraversed, judge of superior court must take as true the statement of facts and evidence adduced upon the trial of case as contained in an answer and in those portions of the petition for certiorari verified thereby as true. West v. State, 103 Ga. App. 71 , 118 S.E.2d 491 , 1961 Ga. App. LEXIS 860 (1961).

Although the statute does not require that the answer be traversed, if no traverse is filed, the answer becomes conclusive as to recitals of fact contained therein, and the answer becomes the record on which the superior court is authorized to rule on the merits of the petition. Bembry v. Johnson, 152 Ga. App. 422 , 263 S.E.2d 229 , 1979 Ga. App. LEXIS 2949 (1979).

Although a traverse to an answer is now optional, the recitals of fact contained in the answer are rendered conclusive when neither a traverse nor an exception is filed. This being so, the court is entitled to rely upon the factual recitals of the answer as a part of the record, and to use the recitals as a basis for the court’s findings. Cox v. City of Lawrenceville, 168 Ga. App. 119 , 308 S.E.2d 224 , 1983 Ga. App. LEXIS 2700 (1983).

Traverse and exception unnecessary when petition sufficiently establishes error and answer merely denies allegations. —

When facts sufficient to establish error are alleged in petition and inferior court files answer merely denying these allegations, issues are sufficiently developed for superior court review and exception and subsequent traverse to answer are no longer necessary. Williamson v. City of Tallapoosa, 238 Ga. 522 , 233 S.E.2d 777 , 1977 Ga. LEXIS 1085 (1977).

Decisions Prior to 1961 Amendment

Editor’s notes.

The following decisions were rendered under this section as it read prior to amendment by Ga. L. 1961, p. 190, § 6, which added traverse (previously dealt with under a separate section) to its scope as well as a more specific time limit for filing of exceptions and traverse.

1.In General

Section prescribes method for correcting answer which omits evidence adduced upon trial. —

If answer is subject to correction because it does not contain evidence adduced upon trial, proper method to make the evidence adequate and complete in that respect is prescribed by this section. Loomis v. City of Atlanta, 82 Ga. App. 346 , 60 S.E.2d 397 , 1950 Ga. App. LEXIS 1105 (1950).

Section prescribes exclusive means for perfecting incomplete answer. —

Section prescribes only means of perfecting answer and other relief cannot be granted to the plaintiff by the Supreme Court. Wyatt v. Turner, 40 Ga. 36 , 1869 Ga. LEXIS 8 (1869); Stoner v. Magins, 116 Ga. 797 , 43 S.E. 45 , 1902 Ga. LEXIS 273 (1902); Tyner v. Leake, 117 Ga. 990 , 44 S.E. 812 , 1903 Ga. LEXIS 404 (1903).

Incomplete answer to writ of certiorari can be perfected only by exceptions taken thereto in manner prescribed by section. Macris v. Tsipourses, 35 Ga. App. 671 , 134 S.E. 621 , 1926 Ga. App. LEXIS 1075 (1926).

Motion to dismiss answer will not lie to perfect it. Star Glass Co. v. Longley & Robinson, 64 Ga. 576 , 1880 Ga. LEXIS 362 (1880).

Section provides remedy for both parties when answer of magistrate is not specific. Landrum v. Moss, 1 Ga. App. 216 , 57 S.E. 965 , 1907 Ga. App. LEXIS 195 (1907).

Written exceptions. —

If defendant in certiorari is dissatisfied with answer, the defendant should file written exceptions thereto. Lynn v. Crapps, 47 Ga. App. 744 , 171 S.E. 398 , 1933 Ga. App. LEXIS 635 (1933).

Answer binds plaintiff in certiorari, even though incomplete and insufficient, unless exceptions are filed in accordance with section. Norris v. Sibert & Robinson, 53 Ga. App. 440 , 186 S.E. 199 , 1936 Ga. App. LEXIS 149 (1936).

Absent proper exceptions or traverse to answer of trial magistrate allegations thereof are conclusive. Wadsworth v. Olive, 53 Ga. App. 539 , 186 S.E. 590 , 1936 Ga. App. LEXIS 310 (1936).

Requirements when dissatisfied with answer. —

Any party, dissatisfied with an answer to writ of certiorari must in due time either file exceptions thereto, or traverse same, and, failing to do either, is bound by recitals of fact contained in such answer. Davis v. Rhodes, 112 Ga. 106 , 37 S.E. 169 , 1900 Ga. LEXIS 52 (1900).

Absent exceptions, improper answer by trial judge will cause dismissal. —

When there is an improper or incomplete answer by a trial judge to petition for certiorari, the judge of the superior court will not continue hearing on certiorari until answer is perfected and certiorari will be dismissed, unless exceptions thereto have been filed as provided in this section. Norris v. Sibert & Robinson, 53 Ga. App. 440 , 186 S.E. 199 , 1936 Ga. App. LEXIS 149 (1936).

When answer does not show that final judgment was rendered, judge may dismiss proceeding. Southern Ry. v. Leggett & Co., 117 Ga. 31 , 43 S.E. 421 , 1903 Ga. LEXIS 138 (1903); Hill v. Anderson Banking Co., 18 Ga. App. 41 , 88 S.E. 749 , 1916 Ga. App. LEXIS 104 (1916).

Exceptions will lie only when omissions are material to proper decision of case. Hardy v. Hardy, 2 Ga. App. 530 , 58 S.E. 779 , 1907 Ga. App. LEXIS 446 (1907).

When omissions in answer are immaterial to proper decision of case, exceptions will be overruled. Baird v. Smith, 124 Ga. 251 , 52 S.E. 655 , 1905 Ga. LEXIS 699 (1905).

2.Timeliness of Exceptions

Exceptions must be filed before hearing. Bailey v. Ware & Harper, 17 Ga. App. 492 , 87 S.E. 712 , 1916 Ga. App. LEXIS 726 (1916).

Exceptions, if not filed within time prescribed, must be stricken. Chandler v. Baggett, 13 Ga. App. 333 , 79 S.E. 179 , 1913 Ga. App. LEXIS 144 (1913).

When exceptions are not presented on time by plaintiff, dismissal is proper. Humphries v. Nalley, 14 Ga. App. 804 , 82 S.E. 357 , 1914 Ga. App. LEXIS 455 (1914).

3.Application

Exceptions must specify defects. —

Exceptions must be so definite, apt, and certain that magistrate may be able to understand exact nature of deficiency. Macris v. Tsipourses, 35 Ga. App. 671 , 134 S.E. 621 , 1926 Ga. App. LEXIS 1075 (1926).

Section does not require that exceptions be verified by affidavit. Rumph v. Cleveland, 72 Ga. 189 , 1883 Ga. LEXIS 59 (1883).

Party may except to judge’s failure to send up copy of record. —

When copies of pleading and other part of record are not certified and sent up with answer, it is error to overrule exceptions. Stoufer v. Missenheimer, 26 Ga. App. 554 , 106 S.E. 560 , 1921 Ga. App. LEXIS 522 (1921).

Failure to attach copy of proceedings, where answer indicates intention to do so. —

When, in certiorari proceeding, record does not show that any copy of proceedings was sent up with answer of trial judge, although statement of judge indicates intention to attach such papers, answer is incomplete in that respect. But if applicant for certiorari desires such information before superior court, it is the applicant’s duty to except to the answer in order that the judge might be required to complete the answer. Beavers v. Cassells, 56 Ga. App. 146 , 192 S.E. 249 , 1937 Ga. App. LEXIS 305 (1937).

Oral objection that answer of retired magistrate is not verified is sustainable. Love v. Bush, 21 Ga. App. 436 , 94 S.E. 626 , 1917 Ga. App. LEXIS 625 (1917).

Additional answer prepared before exceptions to original answer are sustained cannot become part of record, if objected to. Bailey v. Ware & Harper, 17 Ga. App. 492 , 87 S.E. 712 , 1916 Ga. App. LEXIS 726 (1916).

When exceptions and traverse are both filed, court should dispose of exceptions first. Chandler v. Baggett, 13 Ga. App. 333 , 79 S.E. 179 , 1913 Ga. App. LEXIS 144 (1913).

General Consideration

Section applies to certiorari from verdict of jury in justice court. Boroughs v. White & Stone, 69 Ga. 841 , 1883 Ga. LEXIS 126 (1883).

Section inapplicable to disposition of possessory warrant case. Bush & Bro. v. Rawlins, 80 Ga. 583 , 5 S.E. 761 , 1888 Ga. LEXIS 194 (1888).

Petition containing no assignment of error is void. —

Petition for certiorari which does not plainly and distinctly set forth assignment of error on any ruling, decision, or judgment of inferior judicatory is void. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 , 1934 Ga. App. LEXIS 650 (1934).

Valid, dismissed certiorari may be renewed under § 9-2-61 , but void certiorari is not renewable. —

When valid certiorari had been dismissed, it could be renewed within six months under provisions of former Code 1933, § 3-808 (see O.C.G.A. § 9-2-61 ), but a petition for certiorari void for any reason could not be renewed. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123 , 177 S.E. 260 , 1934 Ga. App. LEXIS 650 (1934).

Judgment of superior court sustaining first certiorari is equivalent to first grant of new trial, and will not be interfered with unless verdict or judgment set aside by the court was, as a matter of law, demanded. Macon v. United States Fid. & Guar. Co., 41 Ga. App. 774 , 154 S.E. 702 , 1930 Ga. App. LEXIS 1095 (1930).

Court may, upon final decision of case, direct magistrate to refund costs. —

Such magistrate, though insolvent, may be compelled to perform the magistrate’s official duty. Gault v. Wallis, 53 Ga. 675 , 1875 Ga. LEXIS 50 (1875).

Dismissal of Certiorari

“Dismiss” and “overrule” synonymous. —

It would seem that the word “dismiss” under this section is in fact used in the sense synonymous with “overrule.” Ray v. Cruce, 21 Ga. App. 539 , 94 S.E. 899 , 1918 Ga. App. LEXIS 396 (1918).

When judge’s order uses “denied” instead of “dismissed,” correction will be directed. Atlantic Coast Line R.R. v. Peters, 32 Ga. App. 791 , 124 S.E. 815 , 1924 Ga. App. LEXIS 668 (1924).

Failure of judge to file proper answer will be sufficient reason to dismiss a certiorari, when no timely motion is made to perfect the answer. City of Atlanta v. Schaffer, 245 Ga. 164 , 264 S.E.2d 6 , 1980 Ga. LEXIS 727 (1980).

Dismissal for justice’s failure to send up copies of proceedings. —

Failure of justice of peace to send up copies of proceedings in the justice’s court when the copies are necessary to determination of cause is good ground for dismissal of certiorari, but certiorari will not be dismissed when the magistrate fails to send up copies of proceedings when errors complained of in petition, as verified by answer can be fully considered and determined without reference to such proceedings. Lynn v. Crapps, 47 Ga. App. 744 , 171 S.E. 398 , 1933 Ga. App. LEXIS 635 (1933).

Dismissal of certiorari affirmed when legally justified for reason other than that assigned. —

When order of judge of superior court dismissing petition for certiorari is proper and legally justified for reason other than that assigned by the judge, the judge’s action will be affirmed. Anderson v. West Lumber Co., 51 Ga. App. 333 , 179 S.E. 738 , 1935 Ga. App. LEXIS 687 (1935).

Judgment overruling certiorari on merits will be affirmed when record indicates court lacked jurisdiction to entertain petition for certiorari. Gilbert v. Land Estates, Inc., 62 Ga. App. 845 , 9 S.E.2d 914 , 1940 Ga. App. LEXIS 450 (1940).

Certiorari renewed under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61 ) was properly dismissed when first certiorari was not dismissed on merits. Sheehan v. City Council, 8 Ga. App. 539 , 69 S.E. 916 , 1911 Ga. App. LEXIS 30 (1911).

Dismissal not proper, though evidence is doubtful whether writ was filed with petition. Spencer v. Gill, 23 Ga. 8 , 1857 Ga. LEXIS 206 (1857).

No dismissal due to insufficiency of affidavit to support petition when answer supports petition. Taylor v. Gay, 20 Ga. 77 , 1856 Ga. LEXIS 15 (1856).

Failure to prosecute writ. —

Dismissal is not proper for failure to prosecute writ when counsel for defendant removes papers. Hopkins, Allen & Co. v. Suddeth, 18 Ga. 518 , 1855 Ga. LEXIS 231 (1855).

Remand

Case must be returned even though record shows that verdict lacks evidence to support the verdict. Alabama G.S.R.R. v. Austin, 112 Ga. 61 , 37 S.E. 91 , 1900 Ga. LEXIS 27 (1900); Patterson v. Central of Ga. Ry., 117 Ga. 827 , 45 S.E. 250 , 1903 Ga. LEXIS 355 (1903); Fain v. Pilcher & Booth, 31 Ga. App. 115 , 120 S.E. 27 , 1923 Ga. App. LEXIS 762 (1923).

Case may be returned even though record shows that verdict lacks evidence to support the verdict. This is so notwithstanding former certiorari in same case complaining of similar verdict was sustained. Alabama G.S.R.R. v. Austin, 112 Ga. 61 , 37 S.E. 91 , 1900 Ga. LEXIS 27 (1900); Patterson v. Central of Ga. Ry., 117 Ga. 827 , 45 S.E. 250 , 1903 Ga. LEXIS 355 (1903); Fain v. Pilcher & Booth, 31 Ga. App. 115 , 120 S.E. 27 , 1923 Ga. App. LEXIS 762 (1923).

In case when only error alleged is that verdict is contrary to law and evidence, it is erroneous to render final judgment in petitioner’s favor, for the reason that in such case error complained of is not one of law which must finally govern the case. Tuten v. Towles, 36 Ga. App. 328 , 136 S.E. 537 , 1927 Ga. App. LEXIS 59 (1927).

When final determination of case tried in inferior court and carried by certiorari to superior court does not depend upon any controlling question of law, and there are issues of fact involved, superior court has no authority to render final judgment therein, although it may clearly appear from facts disclosed by record that verdict rendered in lower court was without evidence to support it. Smith v. J.J. Williamson & Sons, 43 Ga. App. 702 , 159 S.E. 912 , 1931 Ga. App. LEXIS 524 (1931).

Judge may give directions as to verdict on retrial in event evidence is same. —

In such case, the court may direct that if evidence is substantially the same on the next trial, a verdict for the defendant should be rendered. Baker v. Kendrick, 9 Ga. App. 382 , 71 S.E. 498 , 1911 Ga. App. LEXIS 564 (1911).

When certiorari is sustained on ground that venue was not established. —

When, upon conviction in criminal court of county, defendant applied for writ of certiorari to superior court of county on ground that state had failed to establish venue of case, and upon hearing, state admitted the state’s failure to establish venue, it is proper for the superior court to sustain certiorari and remand the case to the trial court for another trial, and it is not proper for the superior court in such case to enter final judgment therein, as error complained of is not an error of law which must finally govern the case, and it cannot be known with certainty that evidence on another trial would be the same. Arnold v. State, 88 Ga. App. 710 , 77 S.E.2d 550 , 1953 Ga. App. LEXIS 1166 (1953).

On new trial by superior court order, formal evidence of latter’s judgment is unnecessary. —

After case has been tried in justice’s court and on certiorari new trial has been ordered, a new trial may be lawfully had in the magistrate’s court without producing therein any formal evidence of a judgment rendered in superior court. Odell v. Dozier, 104 Ga. 203 , 30 S.E. 813 , 1898 Ga. LEXIS 305 (1898).

Final Judgment on Certiorari

When court must render final judgment on certiorari. —

Provision of section, which requires judge of superior court to make a final decision in case which is before the judge on certiorari, is mandatory only when the nature of error complained of is such that the law forbids the result which was reached, no matter what testimony was, and regardless of what testimony may be adduced should there be another trial of the case. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209 , 77 S.E. 13 , 1913 Ga. App. LEXIS 494 (1913).

Wherever case can be determined as a matter of law, the court must make final disposition of the case. Longshore v. Collier, 37 Ga. App. 450 , 140 S.E. 636 , 1927 Ga. App. LEXIS 734 (1927).

When issues of fact are involved, case must be returned to lower court with instructions. Sapp v. Adams, 65 Ga. 600 , 1880 Ga. LEXIS 269 (1880); Rogers v. Georgia R.R., 100 Ga. 699 , 28 S.E. 457 , 1897 Ga. LEXIS 131 (1897); Williams v. Bradfield, 116 Ga. 705 , 43 S.E. 57 , 1902 Ga. LEXIS 226 (1902); Jeffries v. Luke, 5 Ga. App. 157 , 62 S.E. 719 , 1908 Ga. App. LEXIS 45 (1908).

When court may render final judgment on certiorari. —

Court may render final judgment on certiorari, when no issue of fact is involved, and error assigned is a question of law which must finally govern the case. James v. Smith & Bro., 62 Ga. 345 , 1879 Ga. LEXIS 523 (1879); Cone Export & Comm'n Co. v. McCalla, 113 Ga. 17 , 38 S.E. 336 , 1901 Ga. LEXIS 145 (1901); Hewett v. Robertson, 124 Ga. 920 , 53 S.E. 456 , 1906 Ga. LEXIS 660 (1906); Porterfield v. Thompson, 4 Ga. App. 524 , 61 S.E. 1055 , 1908 Ga. App. LEXIS 465 (1908); Walton v. Shakespear, 18 Ga. App. 140 , 88 S.E. 906 , 1916 Ga. App. LEXIS 177 (1916); Dixon v. Pierce, 22 Ga. App. 291 , 95 S.E. 995 , 1918 Ga. App. LEXIS 311 (1918).

Discretion of court will not be controlled unless manifestly abused. Ayers v. Taylor, 54 Ga. 264 , 1875 Ga. LEXIS 148 (1875).

When no dispositive question of law is presented. —

Judge of superior court is not authorized to render final decision when there is no question of law before it which must finally govern case, and only issues of fact are involved. Sellers v. McNair, 42 Ga. App. 731 , 157 S.E. 373 , 1931 Ga. App. LEXIS 123 (1931).

When issues of fact are involved, final judgment cannot be passed on certiorari. Desvergers v. Kruger, 60 Ga. 100 , 1878 Ga. LEXIS 381 (1878); Almand v. Georgia R.R. & Banking Co., 102 Ga. 151 , 29 S.E. 159 , 1897 Ga. LEXIS 475 (1897); Pittman v. Alexander, 19 Ga. App. 475 , 91 S.E. 910 , 1917 Ga. App. LEXIS 168 (1917).

If there is question of fact, whether disputed or not, court cannot enter final judgment. Hardison v. Gledhill, 72 Ga. App. 432 , 33 S.E.2d 921 , 1945 Ga. App. LEXIS 601, 1945 Ga. App. LEXIS 602 (1945). But see Rome R.R. v. Ransom, 78 Ga. 705 , 3 S.E. 626 , 1887 Ga. LEXIS 56 (1887); Longshore v. Collier, 37 Ga. App. 450 , 140 S.E. 636 , 1927 Ga. App. LEXIS 734 (1927).

When issues of fact are involved, superior court has no authority to render final judgment, and even though former judgment is without evidence to support the judgement, the superior court must remand the case for a new trial. Putnam v. Sewell, 86 Ga. App. 298 , 71 S.E.2d 566 , 1952 Ga. App. LEXIS 941 (1952).

When only question involves sufficiency of evidence to support finding in justice’s court, superior court judge errs in rendering final judgment. Gowder v. Smith, 62 Ga. App. 647 , 9 S.E.2d 197 , 1940 Ga. App. LEXIS 389 (1940).

Court may make final disposition of case involving law and facts when latter not disputed. Longshore v. Collier, 37 Ga. App. 450 , 140 S.E. 636 , 1927 Ga. App. LEXIS 734 (1927). But see Hardison v. Gledhill, 72 Ga. App. 432 , 33 S.E.2d 921 , 1945 Ga. App. LEXIS 601, 1945 Ga. App. LEXIS 602 (1945).

Section permits final disposition of case, even though facts are involved, if not conflicting. Rome R.R. v. Ransom, 78 Ga. 705 , 3 S.E. 626 , 1887 Ga. LEXIS 56 (1887). But see Hardison v. Gledhill, 72 Ga. App. 432 , 33 S.E.2d 921 , 1945 Ga. App. LEXIS 601, 1945 Ga. App. LEXIS 602 (1945).

Certiorari may be sustained at instance of defendant, although evidence is conflicting. Hancock v. Allen, 29 Ga. App. 611 , 116 S.E. 321 , 1923 Ga. App. LEXIS 139 (1923).

Use of legal question involved in motion to dismiss, overruled below, to render final judgment. —

Superior court judge may make use of question of law involved in demurrer (now motion to dismiss), which was wholly overruled by justice at trial, to dispose finally of case without sending the case back for a new hearing. Sellers v. McNair, 42 Ga. App. 731 , 157 S.E. 373 , 1931 Ga. App. LEXIS 123 (1931).

It is immaterial upon what ground judge based decision if the judgment on certiorari is correct. Nightingale v. Mayor of Brunswick, 26 Ga. App. 43 , 105 S.E. 382 , 1920 Ga. App. LEXIS 261 (1920); Hines v. Porter, 26 Ga. App. 178 , 106 S.E. 16 , 1921 Ga. App. LEXIS 51 (1921).

Modification of Sentence or Correction of Verdict on Certiorari

Sentence which does not exceed maximum of statute cannot be modified by the superior court. Johnson v. City of Hawkinsville, 27 Ga. App. 801 , 110 S.E. 23 , 1921 Ga. App. LEXIS 439 (1921).

Superior court has no power, under writ of certiorari, to modify sentence passed by city court and not imposing punishment beyond maximum prescribed by law. Sellers v. McNair, 42 Ga. App. 731 , 157 S.E. 373 , 1931 Ga. App. LEXIS 123 (1931).

When verdict exceeds amount claimed. —

Court may under this section, with assent of plaintiff, correct verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Seaboard Air-Line Ry. v. Christian, 115 Ga. 742 , 42 S.E. 66 , 1902 Ga. LEXIS 560 (1902).

When superior court properly overrules all grounds of petition for certiorari save one presenting point that verdict under review was contrary to law because for an amount larger than that sued for, that court may, with assent of the plaintiff, correct the verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Sellers v. McNair, 42 Ga. App. 731 , 157 S.E. 373 , 1931 Ga. App. LEXIS 123 (1931).

If trial jury erred in finding interest, error should be corrected on certiorari. Carnes v. Mattox, 71 Ga. 515 , 1883 Ga. LEXIS 209 (1883).

General Consideration

Applies to certiorari from inferior judicatories exercising criminal or quasi-criminal jurisdiction. —

In all cases for writ of certiorari from inferior judicatory exercising criminal or quasi-criminal jurisdiction, filing of bond, or making of pauper’s affidavit, is condition precedent to application. Sauceman v. State, 209 Ga. 60 , 70 S.E.2d 754 , 1952 Ga. LEXIS 411 (1952).

Condition to certiorari from municipal court judgment. —

Filing of bond or making of pauper affidavit, required under this section, relating to certiorari sued to review judgment of municipal court, is condition precedent to application for certiorari. Nilsen v. City of La Grange, 55 Ga. App. 676 , 191 S.E. 175 , 1937 Ga. App. LEXIS 451 (1937).

Condition precedent to review of conviction in recorder’s court. —

Filing of bond required by subsection (a) or pauper’s affidavit provided for under subsection (b) is condition precedent to application for certiorari to review judgment of conviction in recorder’s court. Long v. City of Crawfordville, 55 Ga. App. 182 , 189 S.E. 685 , 1937 Ga. App. LEXIS 30 (1937); West v. City of College Park, 116 Ga. App. 355 , 157 S.E.2d 491 , 1967 Ga. App. LEXIS 811 (1967).

Condition precedent to review of conviction in city court. —

Filing of security bond or pauper’s affidavit is condition precedent to application for certiorari to review judgment of conviction in city court. Ellett v. City of College Park, 135 Ga. App. 269 , 217 S.E.2d 374 , 1975 Ga. App. LEXIS 1643 (1975).

Failure to give bond required by section authorizes refusal to sanction petition. Roberts v. Mayor of Colquitt, 17 Ga. App. 557 , 87 S.E. 816 , 1916 Ga. App. LEXIS 779 (1916).

Unless it appears that requirements as to giving bond have been fully complied with, petition for certiorari should not be sanctioned. Mantovani v. City of Atlanta, 43 Ga. App. 787 , 160 S.E. 129 , 1931 Ga. App. LEXIS 561 (1931).

Appearance-supersedeas bond in certiorari must be executed according to provisions of this section as condition precedent to sanctioning of the application. Soles v. City of Vidalia, 92 Ga. App. 839 , 90 S.E.2d 249 , 1955 Ga. App. LEXIS 727 (1955).

Failure to aver filing of bond or affidavit renders petition void. —

Failure to aver in petition for certiorari that bond has been filed or affidavit made, renders petition void. Nilsen v. City of La Grange, 55 Ga. App. 676 , 191 S.E. 175 , 1937 Ga. App. LEXIS 451 (1937).

Petition sanctioned in spite of noncompliance with bond requirements should be dismissed on hearing. Mantovani v. City of Atlanta, 43 Ga. App. 787 , 160 S.E. 129 , 1931 Ga. App. LEXIS 561 (1931).

If writ has been improperly sanctioned, dismissal will be necessary. Flynn v. City of E. Point, 18 Ga. App. 729 , 90 S.E. 372 , 1916 Ga. App. LEXIS 1224 (1916).

Dismissal proper for failure to file bond or make affidavit. —

When neither bond nor the pauper affidavit in lieu thereof was filed in the mayor’s court as provided by this section there was no error in dismissing certiorari. Archer v. City of Fayetteville, 14 Ga. App. 24 , 80 S.E. 34 , 1913 Ga. App. LEXIS 392 (1913).

Applicability

Motion to vacate and set aside verdict and judgment in criminal case. —

Hodges v. Balkcom, 209 Ga. 856 , 76 S.E.2d 798 , 1953 Ga. LEXIS 447 (1953).

No authority exists to fine or imprison defendant. —

A case is not a criminal or quasi-criminal proceeding when issues before police committee of general council of city were in nature of a civil proceeding, and committee had no authority to fine or to deprive officer of the officer’s liberty, but the only authority vested in the committee was to exonerate, to suspend, or to discharge. City of Atlanta v. Stallings, 72 Ga. App. 52 , 33 S.E.2d 18 , 1945 Ga. App. LEXIS 490 (1945).

Certiorari from proceeding in municipal court to determine whether nuisance exists. —

Proceeding in municipal court to determine question of whether nuisance exists was not criminal or quasi-criminal in nature since the court cannot fine or imprison the defendant in error, and the bond required for certiorari was that provided for in former Code 1933, §§ 19-206, 19-207, 19-208 (see O.C.G.A. § 5-4-5 ) for civil proceedings, and bond under former Code 1933, §§ 19-214, 19-215, 19-216 (see O.C.G.A. § 5-4-20 ) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598 , 98 S.E.2d 216 , 1957 Ga. App. LEXIS 867 (1957).

Review of revocation of probationary sentences is not review of judgment of conviction. —

Defendants, who were confined upon revocation of probationary sentences and who sought review by certiorari of order of revocation, were not entitled to be released on bond, since the defendants were not seeking to review a judgment of conviction within the provisions of former Code 1933, §§ 19-214, 19-215, 19-216, and 27-901 (see O.C.G.A. §§ 5-4-20 and 17-6-1 ). Foster v. Jenkins, 210 Ga. 383 , 80 S.E.2d 277 , 1954 Ga. LEXIS 313 (1954).

Bond

1.In General

Bond shall be conditioned to abide final judgment of superior court as well as inferior court. —

Bond approved by clerk of lower court, if there be one, conditioned to abide final judgment of superior court, as well as inferior court, must be filed as a condition precedent to obtaining writ of certiorari. Moon v. City of Jefferson, 10 Ga. App. 572 , 73 S.E. 854 , 1912 Ga. App. LEXIS 616 (1912).

Should be conditioned that defendant appear and abide by judgment. —

Bond conditioned for appearance of defendant to abide final judgment of superior court is insufficient. It should be conditioned to appear “and” abide by final judgment, as the two conditions are not synonymous. Scott v. City of Camilla, 7 Ga. App. 689 , 67 S.E. 846 , 1910 Ga. App. LEXIS 466 (1910); Ruffin v. City of Millen, 18 Ga. App. 784 , 90 S.E. 654 , 1916 Ga. App. LEXIS 1270 (1916).

Abrogation of bond. —

When one convicted of misdemeanor in county criminal court has appealed by certiorari and successive writs of error all the way up to the Supreme Court of the United States, and verdict and sentence have been affirmed, and remittitur from the Court of Appeals of Georgia affirming such verdict and sentence has been made the judgment of superior court, such verdict and sentence become final; and when the defendant is thereafter arrested, the supersedeas certiorari bond executed in that case is abrogated and becomes functus officio, and the defendant is not thereafter entitled to remain at liberty by virtue of such bond. Hodges v. Balkcom, 209 Ga. 856 , 76 S.E.2d 798 , 1953 Ga. LEXIS 447 (1953).

Application may be amended to show valid bond. —

Defendant convicted in municipal court of leaving the scene of an accident and driving without insurance failed to comply with the bond requirement in O.C.G.A. § 5-4-20(a) before the defendant filed the defendant’s application for writ of certiorari; however, under O.C.G.A. § 5-4-10 , the defendant was entitled to amend the defendant’s petition once the defendant had a valid bond. Williams v. City of Douglasville, 354 Ga. App. 313 , 840 S.E.2d 715 , 2020 Ga. App. LEXIS 159 (2020).

Clerk not authorized to refuse to accept and approve bond request. —

Court clerk was not authorized to refuse to accept and approve the petitioner’s request for a supersedeas bond on the grounds that the petitioner failed to satisfy the requirements of O.C.G.A. § 5-4-5(a) , that the petitioner was not authorized to dismiss and renew a petition for a writ of certiorari, and that, given that the petitioner was not authorized to renew the petition for certiorari, the petitioner’s renewed petition was untimely because the petitions fell outside of the discretionary authority granted to the clerk under O.C.G.A. § 5-4-20 . Adams v. Neykov, 356 Ga. App. 884 , 849 S.E.2d 712 , 2020 Ga. App. LEXIS 548 (2020).

2.Execution and Signatures

When agent for surety signs certiorari bond, agent’s authority must expressly appear. —

When on certiorari from trial court, certiorari bond is signed by one as agent for surety named thereon, authority of such agent must expressly appear. Taylor v. City of Atlanta, 84 Ga. App. 739 , 67 S.E.2d 143 , 1951 Ga. App. LEXIS 781 (1951).

When attorney signs bond for surety without power of attorney attached. —

When defendant in certiorari made a motion to dismiss certiorari for reason that surety on certiorari bond had executed the bond by the defendant’s attorney and that the bond was not a valid bond, because no power of attorney was attached thereto showing authority of the attorney to sign the bond for the surety, the court properly sustained the motion and dismissed certiorari. Mantovani v. City of Atlanta, 43 Ga. App. 787 , 160 S.E. 129 , 1931 Ga. App. LEXIS 561 (1931).

3.Validity of Bond

Bond payable to city recorder charged with responsibilities involving forfeiture of appearance bonds. —

When city recorder is person charged with responsibility of forfeiting appearance bonds when the bond’s conditions have not been complied with, and the recorder necessarily does so for and on behalf of the city as such officer, petition showing that bond hereunder was made payable to city recorder or the recorder’s successors in office affirmatively shows a valid contract between obligors and city for this purpose, and it was not subject to dismissal upon this ground. Soles v. City of Vidalia, 92 Ga. App. 839 , 90 S.E.2d 249 , 1955 Ga. App. LEXIS 727 (1955).

Bonds filed in municipal court, payable to Governor. —

Bonds filed by defendants in municipal trial court, naming therein as obligee the Governor of Georgia and the Governor’s successor in office are not legal bonds as are contemplated under provisions of this section, and failure of petitioners to give proper bond rendered the petition for certiorari void. Coleman v. Mayor of Savannah, 102 Ga. App. 664 , 117 S.E.2d 186 , 1960 Ga. App. LEXIS 711 (1960).

Filing of bond is not affirmatively established by allegations to that effect in petition. Hubert v. City of Thomasville, 18 Ga. App. 756 , 90 S.E. 720 , 1916 Ga. App. LEXIS 1246 (1916).

Certificate of clerk or trial judge approving bond is not conclusive of bond’s validity. —

While certificate from clerk or presiding officer of trial court that bond has been accepted and approved should be accepted as prima facie true, it is not conclusive that proper bond has been given; and if bond itself is sent up with the record and shows on the bond’s face that legal bond has not been given, certiorari should be dismissed. Mantovani v. City of Atlanta, 43 Ga. App. 787 , 160 S.E. 129 , 1931 Ga. App. LEXIS 561 (1931).

In petition for certiorari from recorder’s court, approval of bond by city clerk is insufficient. —

When, in petition for certiorari to superior court to correct judgment of recorder’s court convicting the petitioner of violation of a city ordinance, instead of being approved by clerk of recorder’s court or by recorder in absence of clerk, the supersedeas-appearance bond attached to petition was approved by the city clerk, the superior court did not err in overruling the petition for certiorari, as conditions precedent to application for certiorari, established by this section in such cases as this, are mandatory. Griffin v. City of Albany, 88 Ga. App. 229 , 76 S.E.2d 436 , 1953 Ga. App. LEXIS 1052 (1953).

General Consideration

Section furnishes exact rule by which verdict is to be measured; by it a verdict is either right or wrong. Richmond & D.R.R. v. Allison, 89 Ga. 567 , 16 S.E. 116 , 1892 Ga. LEXIS 409 (1892) (see O.C.G.A. § 5-5-20 ).

Damages rules and new trial rules exist independently. —

Rules of law governing (1) right of jury to originally fix damages, (2) right of appellate court to grant new trial when verdict is alleged to be excessive or inadequate, and (3) right of trial judge to grant new trial when in the judge’s discretion the judge thinks the verdict “unfair, unjust, contrary to evidence, excessive, or too small,” exist apart from and independent of each other. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Authority to grant new trial. —

No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97 , 547 S.E.2d 734 , 2001 Ga. App. LEXIS 458 (2001), cert. dismissed, No. S01C1171, 2001 Ga. LEXIS 745 (Ga. Sept. 17, 2001).

Duty of trial judge to exercise discretion. —

Motion for new trial on grounds set forth in O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21 addresses sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460 , 128 S.E.2d 496 , 1962 Ga. LEXIS 531 (1962); Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

In a murder case, the record indicated that, contrary to the defendant’s contention, the trial court was aware of and exercised the court’s discretion to weigh the evidence in the court’s consideration of the defendant’s motion for new trial on the general grounds under O.C.G.A. §§ 5-5-20 and 5-5-21 because the trial court specifically responded that the court would not grant a new trial as the thirteenth juror. Allen v. State, 296 Ga. 738 , 770 S.E.2d 625 , 2015 Ga. LEXIS 181 (2015).

In an action for child molestation, rape, and terroristic threats, the successor judge failed to exercise discretion in the review of the defendant’s “general grounds” argument, as there was no evidence that the successor judge exercised discretion, weighed the evidence, and determined as the “thirteenth juror” whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Bernal v. State, 358 Ga. App. 681 , 856 S.E.2d 64 , 2021 Ga. App. LEXIS 118 (2021).

Denial of new trial is in trial judge’s discretion. —

Denial of a new trial on the ground that the verdict is contrary to the evidence addresses itself only to the discretion of the trial judge. Witt v. State, 157 Ga. App. 564 , 278 S.E.2d 145 , 1981 Ga. App. LEXIS 1913 (1981).

Trial court did not abuse the court’s discretion in denying the defendant’s motion for a new trial, as the defendant did not show that the defendant received ineffective assistance of counsel because the evidence was so overwhelming against the defendant that there was not a reasonable probability that the subpoena of the witness and the witness’s testimony at trial would have produced a different result; in other words, the defendant did not show that the defendant was prejudiced by the alleged deficiency of defense counsel’s failure to subpoena a witness. Cain v. State, 277 Ga. 309 , 588 S.E.2d 707 , 2003 Ga. LEXIS 948 (2003), transferred, 268 Ga. App. 39 , 601 S.E.2d 415 , 2004 Ga. App. LEXIS 830 (2004), overruled in part, Dickens v. State, 280 Ga. 320 , 627 S.E.2d 587 , 2006 Ga. LEXIS 165 (2006).

Evidence supported the defendant’s malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant’s phone, given that a witness saw the defendant meet the victim at the door of the defendant’s house, call the victim a bitch, and yank the victim’s arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed it was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532 , 796 S.E.2d 671 , 2017 Ga. LEXIS 36 (2017).

Motion for new trial addresses only errors of law and fact contributing to rendition of verdict; it does not pertain to motion to vacate judgment. Insurance Co. of N. Am. v. Eunice, 111 Ga. App. 135 , 140 S.E.2d 918 , 1965 Ga. App. LEXIS 902 (1965).

Motion for new trial must be made before trial court. —

Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448 , 738 S.E.2d 277 , 2012 Ga. App. LEXIS 1063 (2012), cert. denied, No. S13C0640, 2013 Ga. LEXIS 528 (Ga. June 3, 2013).

Successor judge’s review of only parts of transcript. —

When the defendant’s post-conviction counsel argued at a new trial hearing that a successor judge should grant a new trial on the general grounds, counsel knew that the judge planned to review only those portions of the trial transcript that counsel presented; counsel therefore waived any complaint that the judge failed to conduct a full general-grounds review of all of the evidence under O.C.G.A. §§ 5-5-20 and 5-5-21 . However, a successor judge should consider all of the trial evidence. Hill v. State, 310 Ga. 180 , 850 S.E.2d 110 , 2020 Ga. LEXIS 750 (2020).

Standard for considering motion for new trial. —

Trial court failed to apply the proper standard of review in considering a motion for new trial under O.C.G.A. § 5-5-20 . A trial court could not grant judgment notwithstanding the verdict on an issue if “any evidence” existed to support that issue; by contrast, under § 5-5-20 , a trial court could grant a motion for new trial if the verdict was contrary to the evidence. Moore v. Stewart, 315 Ga. App. 388 , 727 S.E.2d 159 , 2012 Ga. App. LEXIS 371 (2012).

Following the defendant’s felony murder trial, the trial court’s order explicitly stated that the court declined to “exercise the court’s discretion as a ‘thirteenth juror”’ only after weighing “the motion, the record of the case, and arguments of counsel” and finding both that the court believed there was sufficient evidence for the verdict and that the verdict “did not violate principles of justice and equity”. Contrary to the defendant’s argument, the trial court used the correct standard. Lowery v. State, 310 Ga. 360 , 851 S.E.2d 538 , 2020 Ga. LEXIS 765 (2020).

Because the trial court specifically stated in the court’s order that the court was denying the defendant’s motion for new trial after consideration of the pleadings, the transcript of proceedings, and the applicable law, the trial court did not state the incorrect standard in the court’s order, and nothing in the record indicated that the court was unaware of the court’s responsibility to exercise the court’s discretion as the thirteenth juror. Hodges v. State, 309 Ga. 590 , 847 S.E.2d 538 , 2020 Ga. LEXIS 585 (2020).

Trial court applied incorrect standard. —

When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court’s discretion and weigh the evidence. The trial court did not exercise the court’s discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and 5-5-21 . Walker v. State, 292 Ga. 262 , 737 S.E.2d 311 , 2013 Ga. LEXIS 3 (2013).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant’s motion for new trial, requiring remand for the trial court to apply the proper standard to the general grounds and to exercise the court’s discretion to sit as a thirteenth juror pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 . White v. State, 293 Ga. 523 , 753 S.E.2d 115 , 2013 Ga. LEXIS 642 (2013).

Although the evidence was sufficient to convict the defendant as a party of sexual exploitation of children, aggravated sodomy, child molestation, and first degree cruelty to children, the judgment was vacated because the successor judge erred in denying the defendant’s motion for a new trial as there was no evidence that the successor judge reviewed the evidence under the appropriate discretionary standard in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205 , 767 S.E.2d 798 , 2014 Ga. App. LEXIS 826 (2014), cert. denied, No. S15C0648, 2015 Ga. LEXIS 209 (Ga. Mar. 30, 2015).

General ground that verdict is contrary to evidence means verdict lacks evidence to support the verdict. Hardwick v. Georgia Power Co., 100 Ga. App. 38 , 110 S.E.2d 24 , 1959 Ga. App. LEXIS 531 (1959).

Approval of verdict necessary to finalize verdict. —

Before verdict becomes final the verdict should, when the losing party requires it by motion for new trial, receive approval of mind and conscience of trial judge. Until the judge’s approval is given, the verdict does not become binding in case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Grounds for new trial known but omitted at time of motion cannot be raised in subsequent petition. —

When, in former suit between same parties and relating to same subject matter, verdict was rendered against party, whose motion for new trial was afterwards voluntarily dismissed, a petition subsequently brought by such party to review and set aside verdict is properly dismissed on general demurrer (now motion to dismiss), when it appears that grounds for review were such as were known, or could by reasonable diligence have been discovered in time to incorporate those grounds in motion for new trial made in former case. Hubbard v. Whatley, 200 Ga. 751 , 38 S.E.2d 738 , 1946 Ga. LEXIS 352 (1946).

Consideration of all evidence presented at trial. —

Although the jury ultimately acquitted the second defendant for the armed robbery and aggravated assault of one of the victims, the trial court, when considering the general grounds for a new trial, was free to consider all of the evidence presented at trial, including the state offered evidence, namely through an accomplice witness’s testimony, that the second defendant had been involved in the planning and setup of the robbery of that victim. Pender v. State, 311 Ga. 98 , 856 S.E.2d 302 , 2021 Ga. LEXIS 87 (2021).

Judgment Notwithstanding Verdict

New trial may be granted without demanding judgment n.o.v. for weight of evidence may be on one side, yet there is some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence in the verdict’s favor, the verdict may still be against weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Denial of new trial on general grounds, unexcepted to, precludes judgment notwithstanding verdict on appeal. —

When trial judge denies motion for new trial on general grounds, the judge finds that the verdict is not against the weight of the evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support the verdict or that the evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Effect of motion for judgment notwithstanding verdict when some evidence supports verdict. —

When there is any evidence supporting the verdict, grounds of motion for judgment notwithstanding the verdict, that such verdict was contrary to evidence and contrary to principles of justice and equity, merely invoke discretion of trial court on question of whether new trial should be granted on weight of evidence. Crosby Aeromarine, Inc. v. Hyde, 115 Ga. App. 836 , 156 S.E.2d 106 , 1967 Ga. App. LEXIS 1275 (1967).

Application

1.In General

In first grant of new trial, trial judge has broad discretion. Garrett v. Garrett, 128 Ga. App. 594 , 197 S.E.2d 739 , 1973 Ga. App. LEXIS 1554 (1973).

Denial of new trial becomes law of case as to grounds contained in motion. —

Absent specific appeal from ruling on motion for new trial or enumerating it as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Grant of new trial under section does not create statutory double jeopardy bar. —

Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20 ) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21 ) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

Trial court’s written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51 . Jackson Nat'l Life Ins. Co. v. Snead, 231 Ga. App. 406 , 499 S.E.2d 173 , 1998 Ga. App. LEXIS 487 (1998), cert. denied, No. S98C1098, 1998 Ga. LEXIS 759 (Ga. June 26, 1998).

Successful motion precludes later plea of former jeopardy. —

Motion for new trial if granted at trial level is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

If no evidence supports finding, new trial must be granted. Branch v. Anderson, 47 Ga. App. 858 , 171 S.E. 771 , 1933 Ga. App. LEXIS 697 (1933).

Overruling general grounds of motion is proper where some evidence supports verdict. —

When trial judge has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not error. Kendrick v. Kendrick, 218 Ga. 460 , 128 S.E.2d 496 , 1962 Ga. LEXIS 531 (1962).

New trial properly denied. —

Trial court properly denied defendant’s motion for a new trial, as the evidence presented, when coupled with the victim’s clear and unfettered identification of the defendant from a photo array, which was not impermissibly suggestive, supported the defendant’s convictions, and the defendant failed to show that trial counsel, who had over 30 years of criminal defense experience, was ineffective and that there was a reasonable likelihood that but for the alleged errors, the outcome would have been different. McIvory v. State, 268 Ga. App. 164 , 601 S.E.2d 481 , 2004 Ga. App. LEXIS 864 (2004), cert. denied, No. S04C1867, 2004 Ga. LEXIS 905 (Ga. Oct. 12, 2004).

Defendant’s motion for a new trial was properly denied as defendant’s claim that the defendant was denied the right of access to the courts by conduct of the prison authorities as such conduct occurred in a post-conviction setting and did not go to the fundamental fairness of the trial as required by O.C.G.A. § 5-5-20 et seq. Tarvin v. State, 277 Ga. 509 , 591 S.E.2d 777 , 2004 Ga. LEXIS 21 (2004).

Motion for a new trial by one member of the limited liability company (LLC) in an action against other members was properly denied, as resignation by another member from LLC did not constitute a breach of fiduciary duty under the LLC’s operating agreement or Georgia law; the remaining member failed to show that the members who resigned from the LLC were prohibited from forming a competing business or soliciting customers of the LLC. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Servs., 272 Ga. App. 232 , 612 S.E.2d 17 , 2005 Ga. App. LEXIS 163 (2005).

In a suit on a guaranty, the trial court did not err in denying a guarantor’s motion for a new trial on general grounds, as the jury’s award fell within the range of damages established by the evidence, the guarantor consented to the bank’s modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court’s instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698 , 627 S.E.2d 417 , 2006 Ga. App. LEXIS 185 (2006).

Because the appellant failed to supply the appellate court with the entire trial transcript in the record on appeal, but only included the pretrial motions and the opening statements at trial, without a complete transcript the court of appeals had to presume that the evidence supported the jury’s verdict; thus, a new trial was not warranted. Parekh v. Wimpy, 288 Ga. App. 125 , 653 S.E.2d 352 , 2007 Ga. App. LEXIS 1094 (2007), cert. denied, No. S08C0520, 2008 Ga. LEXIS 319 (Ga. Mar. 31, 2008).

Trial court properly denied a motion for new trial based on the claim by a dentist and a dental center that a former employee failed to present evidence on the employee’s claim of intentional infliction of emotional distress that the dentist’s actions in harassing the employee were extreme and outrageous or that the emotional distress suffered by the employee was severe; the evidence of the dentist’s pervasive pattern of harassing behavior demonstrated the extreme and outrageous nature of the dentist’s conduct, and the severity of the emotional distress suffered by the employee was evidenced by the fact that the employee became so fearful of the dentist that the employee obtained a gun and kept the gun under the employee’s bed until the employee moved out of state. Ferman v. Bailey, 292 Ga. App. 288 , 664 S.E.2d 285 , 2008 Ga. App. LEXIS 766 (2008).

Trial court did not err in denying a defendant’s motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 based on newly discovered evidence because the “new” evidence—that the defendant’s girlfriend got “five hundred” from the defendant in connection with the incident—did not come to the defendant’s knowledge since the prior trial, and the girlfriend’s alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555 , 669 S.E.2d 514 , 2008 Ga. App. LEXIS 1231 (2008).

Trial court did not err in denying a defendant’s motion for a new trial or the defendant’s motion for a directed verdict because the evidence was sufficient for the trial court to find the defendant guilty of burglary in violation of O.C.G.A. § 16-7-1(a) beyond a reasonable doubt where the back window of a home was broken and police found the defendant hiding in a closet under a pile of clothing. Williams v. State, 297 Ga. App. 723 , 678 S.E.2d 95 , 2009 Ga. App. LEXIS 447 (2009).

Although the condemnee claimed that the verdict was contrary to law and the evidence because the Department of Transportation’s (DOT) expert failed to give any value to the condemnee’s loss of access to approximately 3,800 feet of frontage, the condemnee’s claim failed because the record reflected that the expert explained that any access to the DOT bypass along the approximately 3,811 feet of frontage taken along with the 13.022 acres would be limited by the bypass itself and that the condemnee never owned access rights to the bypass. Moreover, the expert explained further that the frontage had been considered in the valuation of the property. RNW Family P'ship, Ltd. v. DOT, 307 Ga. App. 108 , 704 S.E.2d 211 , 2010 Ga. App. LEXIS 1097 (2010).

Motion for a new trial was properly denied because: (1) the evidence was sufficient to support the crimes for which the defendant was convicted; (2) the trial court did not abuse the court’s discretion by denying the defendant’s motion for a change of venue due to pretrial publicity because the excusal percentage of jurors for cause was not indicative of such prejudice as would have mandated a change in venue; (3) no showing of an improper communication from a bailiff to the jury was shown; (4) the trial court properly instructed the jury and did not err in denying the defendant’s requested instructions; and (5) a cumulative error rule was inapplicable. Gear v. State, 288 Ga. 500 , 705 S.E.2d 632 , 2011 Ga. LEXIS 95 (2011), overruled, State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 , 2020 Ga. LEXIS 98 (2020).

Trial court did not err in denying the defendant’s motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1); under the Child Hearsay Statute, former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820 ), the jury was entitled to consider the victim’s out-of-court statements as substantive evidence, and the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim’s accusations. Hargrave v. State, 311 Ga. App. 852 , 717 S.E.2d 485 , 2011 Ga. App. LEXIS 857 (2011), overruled in part, Martin v. McLaughlin, 298 Ga. 44 , 779 S.E.2d 294 , 2015 Ga. LEXIS 793 (2015).

Trial court did not err in denying the defendant’s motion for new trial because the evidence was sufficient to authorize the defendant’s conviction for possessing more than one ounce of marijuana; the defendant was presumed to have exclusive possession and control of the marijuana that a police officer found in the car the defendant was driving. Nix v. State, 312 Ga. App. 43 , 717 S.E.2d 550 , 2011 Ga. App. LEXIS 880 (2011).

Trial court did not err in denying the defendant’s motion for a new trial because the evidence established the defendant’s commission of child molestation, O.C.G.A. § 16-6-4(a) , and aggravated child molestation, O.C.G.A. § 16-6-4(c) , and supported the verdict; the victim’s prior inconsistent statements concerning the defendant’s acts of sodomy were allowed to serve as substantive evidence of the defendant’s guilt. Stepho v. State, 312 Ga. App. 495 , 718 S.E.2d 852 , 2011 Ga. App. LEXIS 985 (2011).

Trial court did not err in denying the defendant’s motion for new trial because the evidence was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of false imprisonment, O.C.G.A. § 16-5-41(a) , burglary, O.C.G.A. § 16-7-1(a) , and aggravated assault, O.C.G.A. § 16-5-21(a)(2); defense counsel thoroughly cross-examined the victim, the responding officers, and the investigator regarding the victim’s demeanor after the attack, the victim’s description of the attack and the attacker, and the inconsistencies between what the victim told each of them, and determinations of witness credibility and the weight to give the evidence presented was solely within the province of the jury. Pennington v. State, 313 Ga. App. 764 , 723 S.E.2d 13 , 2012 Ga. App. LEXIS 69 (2012).

Because, at the hearing on the defendant’s motion for new trial, the defendant clarified that the defendant was solely arguing the points raised in the defendant’s amended motion, and the defendant repeatedly stated that the defendant’s claim was that the evidence was insufficient to support the defendant’s convictions, the defendant could not now be heard to complain that the trial court failed to exercise the court’s discretion under O.C.G.A. §§ 5-5-20 and 5-5-21 in finding that the verdict was strongly against the weight of the evidence or contrary to evidence and the principles of justice and equity. Gray v. State, 298 Ga. 885 , 785 S.E.2d 517 , 2016 Ga. LEXIS 310 (2016), overruled in part, Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 , 2018 Ga. LEXIS 685 (2018).

Trial court did not err in denying the defendant’s motion for new trial on general grounds because the victim’s testimony was sufficient to establish that the defendant was a party to armed robbery and aggravated assault. Carter v. State, 339 Ga. App. 140 , 793 S.E.2d 459 , 2016 Ga. App. LEXIS 594 (2016).

Sufficient evidence supported the defendant’s conviction for armed robbery and other crimes based on the victim identifying the defendant as one of the two robbers and as the robber who had struck the victim with a gun and the defendant was apprehended a short distance from the attack in possession of the victim’s backpack and a pistol within minutes of the attack. Cooper v. State, 342 Ga. App. 351 , 801 S.E.2d 589 , 2017 Ga. App. LEXIS 236 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. Jan. 16, 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. Jan. 16, 2018), cert. denied, 138 S. Ct. 2039 , 201 L. Ed. 2 d 288, 2018 U.S. LEXIS 3176 (2018).

Trial court exercised the court’s discretion in denying the defendant’s motion for new trial as the evidence authorized the trial court’s findings of fact that the defendant committed the offenses of sexual battery and pandering. Kea v. State, 344 Ga. App. 251 , 810 S.E.2d 152 , 2018 Ga. App. LEXIS 13 (2018).

Defendant’s claim that the trial court failed to exercise the court’s discretion as the thirteenth juror in denying the defendant’s motion for a new trial failed as the court never explicitly declined to consider the credibility of witnesses or make clear the court’s belief the court had no discretion to grant a new trial despite disagreeing with the jury’s verdict. Massey v. State, 346 Ga. App. 233 , 816 S.E.2d 100 , 2018 Ga. App. LEXIS 354 (2018), cert. denied, No. S18C1571, 2019 Ga. LEXIS 80 (Ga. Jan. 22, 2019).

Evidence was sufficient to prove that the defendant fatally shot the victim, and that the defendant did not act in self-defense, because the jury was entitled to give greater weight to the evidence that the defendant had a gun cocked and ready before the meeting with the victim, while the victim was unarmed; the defendant told the homeowner to make the scene look like a burglary and threatened the homeowner; the defendant disposed of the gun and clothes; and there was evidence that the defendant was engaged in a felony drug deal at the time of the shooting, which would preclude the defendant’s self-defense claim; thus, the defendant was not entitled to a new trial based on general grounds. Bannister v. State, 306 Ga. 289 , 830 S.E.2d 79 , 2019 Ga. LEXIS 437 (2019).

Defendant’s murder conviction was supported by evidence that the defendant was a party to the crime, O.C.G.A. § 16-2-20 , although the defendant’s friend was the actual shooter, because the defendant drove the vehicle with the other perpetrators and got out, armed, and confronted the victim before the defendant’s friend shot the victim; the defendant then drove the car away with the others and then ran away with the shooter after crashing the car. The trial court did not err in denying the defendant’s motion for new trial. Williams v. State, 307 Ga. 689 , 838 S.E.2d 314 , 2020 Ga. LEXIS 42 (2020).

In the order denying the defendant’s motion for a new trial, because the trial court performed the court’s duty to sit as a thirteenth juror, weighed the evidence, considered the credibility of the witnesses, and found that the verdicts were amply supported by the evidence, and not strongly and decidedly against the weight of the evidence, the defendant’s motion for a new trial on the general grounds was properly denied. Dixon v. State, 309 Ga. 28 , 843 S.E.2d 806 , 2020 Ga. LEXIS 360 (2020).

Following the defendant’s murder trial, the trial court did not err in denying the defendant’s motion for new trial based on the general grounds, O.C.G.A. §§ 5-5-20 and 5-5-21 , because multiple witnesses saw the defendant shoot the victim in a mall parking lot, chased the victim down, and then shoot the victim again; the jury was not required to credit the defendant’s testimony that the victim had a gun. A hearing on the motion was not required. Bundel v. State, 308 Ga. 317 , 840 S.E.2d 349 , 2020 Ga. LEXIS 183 (2020).

Trial court did not err in failing to grant the defendant’s motion for a new trial based upon the general grounds because the trial court’s order set forth the standards applicable, considered the evidence presented at trial in support of the defendant’s conviction for possession of cocaine, and then explained the decision not to exercise the court’s discretion to grant a new trial as the thirteenth juror. Roundtree v. State, 358 Ga. App. 140 , 854 S.E.2d 340 , 2021 Ga. App. LEXIS 21 (2021).

When motion for new trial denied. —

It is correct for the trial court to deny a motion for new trial when it cannot be said that the verdict of the jury was contrary to the evidence and without evidence to support the verdict. Hill Aircraft & Leasing Corp. v. Tyler, 161 Ga. App. 267 , 291 S.E.2d 6 , 1982 Ga. App. LEXIS 1846 (1982).

Specific reference to defendant’s general grounds argument, coupled with the trial court’s statements concerning the nature and quantum of the evidence, established that the trial court did, in fact, consider whether the verdict was contrary to or against the weight of the evidence under the proper legal standard, and the trial court did fulfill its role to sit as the thirteenth juror when it denied defendant’s motion for a new trial. Sellers v. State, 325 Ga. App. 837 , 755 S.E.2d 232 , 2014 Ga. App. LEXIS 83 (2014), cert. dismissed, No. S14C1238, 2014 Ga. LEXIS 686 (Ga. Sept. 8, 2014).

Trial court was aware of the court’s responsibility as the “thirteenth juror” and, despite the court’s mention of the sufficiency of the evidence at trial, the court exercised the court’s discretion accordingly when denying the defendant’s motion for a new trial after citing personal observations of witnesses and evidence at trial. Perdue v. State, 298 Ga. 841 , 785 S.E.2d 291 , 2016 Ga. LEXIS 260 (2016).

Failure to apply proper standard in assessing weight of evidence. —

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the motion for new trial and, thus, remand was necessary for the trial court to apply the proper standard to the general grounds and to exercise the court’s discretion to sit as a “thirteenth juror”. Whitmire v. State, 343 Ga. App. 282 , 807 S.E.2d 46 , 2017 Ga. App. LEXIS 482 (2017).

If any evidence supports finding of jury, and no error otherwise committed, verdict will stand. Bill Jones Motors, Inc. v. Mitchell, 100 Ga. App. 185 , 110 S.E.2d 555 , 1959 Ga. App. LEXIS 566 (1959).

In determining whether there is any evidence supporting verdict, conflicts are resolved to favor verdict. Drake v. State, 241 Ga. 583 , 247 S.E.2d 57 , 1978 Ga. LEXIS 1053 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265 , 59 L. Ed. 2 d 485 (1979).

It is not error to refuse new trial if verdict is supported by evidence. Hornbuckle v. State, 76 Ga. App. 111 , 45 S.E.2d 98 , 1947 Ga. App. LEXIS 383 (1947).

When second trial necessary anyway. —

New trial is inappropriate when same verdict and judgment will necessarily result on second trial. Georgia Power Co. v. City of Decatur, 181 Ga. 187 , 182 S.E. 32 , 1935 Ga. LEXIS 54 (1935), aff'd, 297 U.S. 620, 56 S. Ct. 606 , 80 L. Ed. 925 , 1936 U.S. LEXIS 542 (1936).

When evidence authorizes verdict for either party. —

When transcript contains evidence which, if believed by the jury, was quite sufficient to authorize the verdict, it is of no moment that evidence would also have authorized the verdict in some amount for the plaintiff since the jury weighed the evidence and made the jury’s choice which is the jury’s duty and function. Daniels v. Hartley, 120 Ga. App. 294 , 170 S.E.2d 315 , 1969 Ga. App. LEXIS 747 (1969).

Verdict contrary to law and issues raised by pleadings. —

That verdict is contrary to law and contrary to issues made by pleadings is a question which may be raised by motion for new trial. Hubbard v. Whatley, 200 Ga. 751 , 38 S.E.2d 738 , 1946 Ga. LEXIS 352 (1946).

Verdict contrary to evidence and principles of justice. —

Trial court, on the court’s own motion, did not err in granting the defendant a new trial on general grounds because the trial court’s written order unequivocally applied the correct standard of review in granting the new trial, explaining that the court was granting a new trial because the verdict was contrary to the evidence and principles of justice and equity. State v. Hamilton, 306 Ga. 678 , 832 S.E.2d 836 , 2019 Ga. LEXIS 596 (2019).

Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448 , 42 S.E. 785 , 1902 Ga. LEXIS 136 (1902).

Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858 , 64 S.E. 1083 , 1909 Ga. LEXIS 429 (1909).

Verdict in amount within range covered by testimony will not be set aside as unsupported by evidence, though the verdict may not correspond with contentions of either party. Langston v. Langston, 42 Ga. App. 143 , 155 S.E. 494 , 1930 Ga. App. LEXIS 265 (1930).

Counsel’s remark not grounds for mistrial. —

Denial of defendant’s motion for a new trial based on the prosecutor’s remark in closing that the defendant had gone into the robbery business was proper and the remark was not the basis for a mistrial under O.C.G.A. § 5-5-20 since there was sufficient evidence to convict defendant of robbery and the jury’s verdict was not contrary to the evidence and principles of justice and equity. Phillips v. State, 259 Ga. App. 331 , 577 S.E.2d 25 , 2003 Ga. App. LEXIS 99 (2003).

No abuse in granting new trial. —

Because there was expert evidence that supported a finding of negligence and causation against physicians and their employers in a medical malpractice action by a patient, a verdict in the physicians’ favor was not absolutely demanded, and the trial court did not abuse the court’s discretion in granting the patient’s motion for new trial, pursuant to O.C.G.A. §§ 5-5-20 and 5-5-50 , after the jury rendered a verdict in favor of the physicians. Bhansali v. Moncada, 275 Ga. App. 221 , 620 S.E.2d 404 , 2005 Ga. App. LEXIS 866 (2005), cert. denied, No. S06C0098, 2006 Ga. LEXIS 36 (Ga. Jan. 17, 2006), cert. denied, No. S06C0096, 2006 Ga. LEXIS 37 (Ga. Jan. 17, 2006).

After a jury entered a special verdict finding that the corporation had notice of an earlier deed securing property in the corporation’s declaratory judgment action to determine the priority of the corporation’s deed over the earlier deed, the corporation’s motion for a new trial was properly granted on the ground that the recordation of the earlier deed was so defective as to provide no notice under O.C.G.A. § 44-14-39 ; the trial court did not abuse the court’s discretion in granting a new trial, even though the court’s grant of judgment notwithstanding the verdict was improper on the ground that evidence supported the jury’s verdict, because the evidence, construed in the corporation’s favor as required under O.C.G.A. § 5-5-20 , did not absolutely demand a verdict that the corporation had actual notice of the earlier deed. Page v. McKnight Constr., 282 Ga. App. 571 , 639 S.E.2d 381 , 2006 Ga. App. LEXIS 1469 (2006).

In a case in which the defendant was found guilty of felony murder and other crimes in connection with the shooting death of the defendant’s ex-husband, the trial court properly exercised the court’s discretion to grant the defendant a new trial on the general grounds because the court concluded that the jury’s guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity; and the supreme court would not disturb the first grant of a new trial based on the general grounds unless the trial court abused the court’s discretion in granting it and the law and the facts demanded the verdict rendered. State v. Hamilton, 299 Ga. 667 , 791 S.E.2d 51 , 2016 Ga. LEXIS 573 (2016).

Defendant’s argument that the verdict was against the weight of the evidence and, therefore, the trial court erred by denying the motion for a new trial was rejected because the trial court’s order clearly indicated that the court considered the general grounds in denying the motion for new trial and therefore the court exercised the court’s discretion. Lamb v. State, 355 Ga. App. 65 , 842 S.E.2d 514 , 2020 Ga. App. LEXIS 253 (2020).

Trial court did not err in granting the defendant’s motion for new trial because the witness was a party to the crime of armed robbery as the witness was with the victim before the armed robbery, was present for the robbery’s planning, and had prior knowledge the robbery was going to occur; the witness was present when the armed robbery and shooting occurred, fled the scene with the co-conspirators, and received $50 to stay quiet about the robbery and murder; and the witness’s accomplice testimony was insufficiently corroborated. State v. Grier, 309 Ga. 452 , 847 S.E.2d 313 , 2020 Ga. LEXIS 517 (2020).

No abuse in denial of new trial. —

Following the defendant’s murder trial, the trial court did not err in granting the defendant’s motion for a new trial on general grounds, sitting as the thirteenth juror, pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 because the trial court’s written order, although provided by the defendant, did not reveal any improper basis for the grant of a new trial and showed that the trial court properly exercised the court’s discretion. State v. Holmes, 306 Ga. 647 , 832 S.E.2d 777 , 2019 Ga. LEXIS 588 (2019).

Judgment sustaining double jeopardy plea in bar reversed. —

Trial court did not err in granting the defendant’s motion for new trial on the general grounds because, in the defendant’s first motion for new trial, the defendant did not waive or abandon the defendant’s claims that the verdict was contrary to the evidence and justice, and against the weight of the evidence, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon the defendant’s ineffective assistance claim; and by failing to raise the claims in the defendant’s brief following the evidentiary hearing. State v. Byrd, 341 Ga. App. 421 , 801 S.E.2d 99 , 2017 Ga. App. LEXIS 213 (2017).

After a mother and daughter were charged with the murder of the daughter’s boyfriend, the judgment sustaining the double jeopardy plea in bar on the basis of insufficient evidence in the first trial was reversed because there was evidence of a common criminal intent, including the women’s presence, companionship, and conduct before and immediately after the fatal shooting. State v. Cash, 302 Ga. 587 , 807 S.E.2d 405 , 2017 Ga. LEXIS 929 (2017).

2.Adequacy of Damages

Determination is within discretion of trial court. —

Determination of question as to whether verdict for damages is inadequate in legal sense, lies within the sound discretion of the trial court. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Mere difference of opinion as to amount of recovery. —

New trial should not be granted based on mere difference of opinion between appellate court and jury as to amount of recovery in action of tort for unliquidated damages. Something more must be disclosed to warrant interference when substantial damages have been returned. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Bias, passion, prejudice, or mistake must appear to justify setting aside. —

When amount of verdict, though less than appellate court would have approved, did not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

When judge can conscientiously acquiesce in verdict, trial judge should approve verdict. —

If trial court can conscientiously acquiesce in amount of verdict, though it may not exactly accord with the court’s best judgment or though some other finding might seem somewhat more satisfactory to the judge’s mind, and if the judge’s sense of justice is reasonably satisfied, the judge should, in absence of some material error of law affecting trial, approve the verdict, and the appellate court will uphold the judge in so doing, and will not say that the judge abused the judge’s discretion. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Inadequacy of damages for pain and suffering. —

Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705 , 181 S.E. 315 , 1935 Ga. App. LEXIS 446 (1935); Brown v. Garcia, 154 Ga. App. 837 , 270 S.E.2d 63 , 1980 Ga. App. LEXIS 2409 (1980).

Exorbitant damages. —

Trial court erred in denying a railroad’s motion for a new trial when the jury verdict awarding an injured employee substantially more than the employee requested for pain and suffering was clearly intended to punish the railroad, which was impermissible under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., as: (1) the jury found that the employee was 50 percent negligent; (2) the employee’s condition had improved, and the employee was attending school, evidencing an ability to adapt to the disability and to improve the employee’s economic situation; and (3) the employee’s counsel infected closing argument with a plea to the jury to punish the railroad or to reach a verdict that would affect the jury’s conduct. Norfolk S. Ry. v. Blackmon, 262 Ga. App. 266 , 585 S.E.2d 194 , 2003 Ga. App. LEXIS 878 (2003), cert. denied, No. S03C1776, 2003 Ga. LEXIS 1035 (Ga. Nov. 17, 2003), cert. denied, No. S03C1752, 2003 Ga. LEXIS 1036 (Ga. Nov. 17, 2003).

Appeal from Denial of New Trial

Appellate court does not have same discretion as trial judge who approved verdict. Southern Ry. v. Brock, 132 Ga. 858 , 64 S.E. 1083 , 1909 Ga. LEXIS 429 (1909).

Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583 , 247 S.E.2d 57 , 1978 Ga. LEXIS 1053 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265 , 59 L. Ed. 2 d 485 (1979).

Because the defendant failed to seek a new trial on the general grounds under O.C.G.A. §§ 5-5-20 and 5-5-21 , that the verdict was against the weight of the evidence and contrary to the principles of justice and equity, but rather sought a new trial on the grounds of arguments made at trial, the appellate court could not address these grounds. Slaton v. State, 296 Ga. 122 , 765 S.E.2d 332 , 2014 Ga. LEXIS 884 (2014).

Appellate courts have no discretion regarding new trials for verdict against weight of evidence. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Appellate court must presume the trial court exercised discretion. —

Although a trial court’s order denying the defendant’s motion for new trial did not state that the trial court exercised the court’s discretion as a thirteenth juror, the appellate court presumed that the trial court knew the rule as to the necessity of exercising the court’s discretion in granting or refusing new trials; the order denying a new trial was taken to mean that the judge had, in the exercise of the judge’s discretion, approved the verdict. Butts v. State, 297 Ga. 766 , 778 S.E.2d 205 , 2015 Ga. LEXIS 696 (2015).

Appellate court had no basis for disturbing the trial court’s exercise of discretion in denying the defendant’s motion for a new trial because the order reflected that the trial court performed the court’s duty using the proper legal standard. Lundy v. State, 341 Ga. App. 767 , 801 S.E.2d 629 , 2017 Ga. App. LEXIS 274 (2017).

Order showed trial court exercised discretion. —

Following the defendant’s murder trial, the trial judge properly exercised the judge’s discretion as the thirteenth juror under O.C.G.A. §§ 5-5-20 and 5-5-21 in finding that “the state had presented ample evidence” and that “the evidence was not sufficiently close nor represented a failure of justice in general.” Strother v. State, 305 Ga. 838 , 828 S.E.2d 327 , 2019 Ga. LEXIS 341 (2019).

Appellate court cannot exercise discretion. —

Motion for new trial based on O.C.G.A. § 5-5-20 , i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on O.C.G.A. § 5-5-21 , i.e., that the verdict is strongly against the evidence, is a decision that is solely in the discretion of the trial court. An appellate court considers only the sufficiency of the evidence before the jury. Henderson v. State, 304 Ga. 733 , 822 S.E.2d 228 , 2018 Ga. LEXIS 790 (2018).

Trial judge’s discretion regarding adequacy of damages, will not be interfered with by appellate courts absent manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

When the trial judge refuses to order a new trial on ground of inadequate damages in tort action, this court will interfere with that discretion only in case of manifest abuse. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

First grant of new trial is not normally reviewable by appellate courts. —

First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Appellate courts are powerless to interfere with first grant of new trial unless verdict set aside was demanded. Garrett v. Garrett, 128 Ga. App. 594 , 197 S.E.2d 739 , 1973 Ga. App. LEXIS 1554 (1973).

Ruling on motion for new trial under this section or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21 ) does not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

When trial judge discharges duty to review evidence, Supreme Court cannot review factual issues. —

When trial judge has discharged the judge’s duty to review evidence, the Supreme Court has no power under the Constitution to pass judgment on issues of fact made by evidence. Merritt v. State, 190 Ga. 81 , 8 S.E.2d 386 , 1940 Ga. LEXIS 419 (1940).

Presumption that trial judge knew rule as to obligation to approve jury’s verdict. —

In interpreting language of order overruling motion for new trial, the appellate court must presume that the trial judge knew rule as to obligation to approve jury’s verdict devolving upon the judge, and that in overruling motion the judge did exercise this discretion, unless language of order indicates to contrary and that court agreed to verdict against the judge’s own judgment and against dictates of the judge’s own conscience, merely because the judge did not feel that the judge had the duty or authority to override findings of the jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437 , 31 S.E.2d 236 , 1944 Ga. App. LEXIS 387 (1944).

Contrary to the defendant’s argument, the trial court reviewed the defendant’s motion for new trial under the discretionary thirteenth juror standard based on the court’s own independent review of the trial record and finding no discrepancy between the jury’s conclusions regarding the weight of the evidence and the credibility of the witnesses and the court’s own views of those matters; moreover, the transcript showed clearly that the court understood the court’s obligations as the so-called thirteenth juror. Burney v. State, 299 Ga. 813 , 792 S.E.2d 354 , 2016 Ga. LEXIS 649 (2016).

When there is doubt, appellate courts must decide in favor of verdicts. Branch v. Anderson, 47 Ga. App. 858 , 171 S.E. 771 , 1933 Ga. App. LEXIS 697 (1933).

Appellate court cannot set aside verdict on general grounds trial judge could have relied upon. —

In considering case in which verdict of jury has approval of trial judge, the appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Appeal from denial of new trial on general grounds raises question whether evidence supported verdict. —

When appeal is from judgment denying party’s motion for new trial and motion is based solely on general grounds, only query for reviewing court is whether evidence supported verdict. Daniels v. Hartley, 120 Ga. App. 294 , 170 S.E.2d 315 , 1969 Ga. App. LEXIS 747 (1969).

Any of general grounds for new trial are addressed to the discretion of the trial judge and on appeal these general grounds pose the sole question, was there any evidence to support verdict. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Setting aside verdict on evidentiary grounds. —

Court of Appeals can set aside verdict on evidentiary grounds only when totally unsupported. Court of Appeals was established to correct errors of law, and can only set verdict aside, on evidentiary grounds, as being contrary to law, in that the verdict lacks any evidence by which the verdict could be supported. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Verdict of jury which has approval of trial judge will not be set aside by Court of Appeals if the verdict is supported by any evidence. Branch v. Anderson, 47 Ga. App. 858 , 171 S.E. 771 , 1933 Ga. App. LEXIS 697 (1933).

While appellate division of Municipal Court of Atlanta may, as any other court of review, grant a new trial when there is no evidence to support the verdict, since there was some evidence on which the verdict could be based, and such verdict had the approval of the trial judge, the appellate division of the Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass'n, 52 Ga. App. 374 , 183 S.E. 350 , 1936 Ga. App. LEXIS 635 (1936).

When verdict is supported by some evidence and the verdict has approval of the trial judge, the verdict will not be disturbed by the appellate court as to general grounds of motion for a new trial. Western & Atl. R.R. v. Fowler, 77 Ga. App. 206 , 47 S.E.2d 874 , 1948 Ga. App. LEXIS 521 (1948).

When verdict is supported by some evidence and is approved by the trial court, the Court of Appeals is without authority to interfere. McDowell v. State, 78 Ga. App. 116 , 50 S.E.2d 633 , 1948 Ga. App. LEXIS 693 (1948); Humphries v. State, 78 Ga. App. 139 , 50 S.E.2d 799 , 1948 Ga. App. LEXIS 700 (1948); Newsome v. State, 78 Ga. App. 332 , 50 S.E.2d 828 , 1948 Ga. App. LEXIS 738 (1948).

Although evidence might authorize different verdict, when there is enough to support verdict found, judgment of trial court refusing new trial on general grounds will not be disturbed. Wright v. State, 76 Ga. App. 483 , 46 S.E.2d 516 , 1948 Ga. App. LEXIS 398 (1948); Marcus v. State, 76 Ga. App. 581 , 46 S.E.2d 770 , 1948 Ga. App. LEXIS 421 (1948); Ramer v. State, 76 Ga. App. 678 , 47 S.E.2d 174 , 1948 Ga. App. LEXIS 440 (1948); Whitfield v. Wheeler, 76 Ga. App. 857 , 47 S.E.2d 658 , 1948 Ga. App. LEXIS 470 (1948), overruled, Caskey v. Underwood, 89 Ga. App. 418 , 79 S.E.2d 558 , 1953 Ga. App. LEXIS 979 (1953).

In passing upon general grounds of motion for new trial, appellate court will not disturb trial court’s refusal to grant new trial if there is any evidence to support the judgment. Hopkins v. Sicro, 107 Ga. App. 691 , 131 S.E.2d 243 , 1963 Ga. App. LEXIS 957 (1963).

Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant’s motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780 , 466 S.E.2d 667 , 1996 Ga. App. LEXIS 10 (1996).

Because two witnesses heard the defendant threaten to use a gun moments prior to the shooting, and eyewitnesses saw the defendant shoot the victim, the evidence was sufficient to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim, and the trial court did not err when the court denied the defendant’s motion for new trial. Batten v. State, 295 Ga. 442 , 761 S.E.2d 70 , 2014 Ga. LEXIS 548 (2014).

Denial of motion for new trial not to be interfered with absent abuse of discretion. —

Denial of ordinary motion for new trial, like denial of extraordinary motion, when based upon conflicting evidence, will not be corrected absent abuse of discretion. Sumner v. Sumner, 186 Ga. 390 , 197 S.E. 833 , 1938 Ga. LEXIS 608 (1938).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a new trial because neither the trial court’s order nor the court’s statement during the hearing that it was “just going to stick by what the jury did,” demonstrated that the court failed to exercise the discretion afforded to the court under O.C.G.A. § 5-5-21 and merely showed the court’s manner of expressing that it was exercising the court’s discretion against setting aside the jury’s verdict. Dixon v. State, 341 Ga. App. 255 , 800 S.E.2d 11 , 2017 Ga. App. LEXIS 176 (2017).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a new trial because sufficient evidence supported the defendant’s convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant’s admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199 , 818 S.E.2d 268 , 2018 Ga. App. LEXIS 485 (2018).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for new trial on general grounds because several codefendants testified that the defendant was a coconspirator and a participant in the victim’s robbery, there was evidence that the defendant placed the telephone call to summon the victim, that the defendant was the first to confront the victim, and that the robbery was the defendant’s idea. Smith v. State, 350 Ga. App. 336 , 829 S.E.2d 408 , 2019 Ga. App. LEXIS 298 (2019).

Denial of defendant’s motion for new trial was reversed as the defendant’s right to be present at trial under Ga. Const. 1983, Art. I, Sec. I, Para. XII was violated when the trial court questioned a juror in chambers without defense counsel or the prosecutor present, dismissed the juror, and replaced the juror with an alternate; the defendant did not acquiesce in the illegal proceedings and repudiated counsel’s silent waiver of the juror’s rights at the juror’s first opportunity, the hearing on a motion for a new trial, at which the defendant was represented by new counsel. Sammons v. State, 279 Ga. 386 , 612 S.E.2d 785 , 2005 Ga. LEXIS 341 (2005).

Although the defendant received effective assistance from trial counsel, because the defendant did not waive or abandon the defendant’s claims under O.C.G.A. §§ 5-5-20 and 5-5-21 , the trial court erred in denying the defendant’s motion for new trial. Hartley v. State, 299 Ga. App. 534 , 683 S.E.2d 109 , 2009 Ga. App. LEXIS 908 (2009).

Although the trial court exercised the court’s discretion as the thirteenth juror to assess the credibility of at least one witness, the court failed to properly fulfill the court’s affirmative statutory duty to independently weigh the trial evidence and identify any offending testimony. It was incumbent upon the trial court to then examine and weigh the remaining evidence and independently consider whether the jury’s verdict was contrary to the evidence or was against the weight of the evidence. State v. Reid, 331 Ga. App. 275 , 770 S.E.2d 665 , 2015 Ga. App. LEXIS 136 (2015).

Trial court erred by denying the appellant’s motion for a new trial because the motion hearing transcript clearly showed that the appellant requested the trial court to exercise the court’s discretion to review the evidence as a thirteenth juror, but in the court’s order denying the motion, the trial court stated that, “The testimony and the other evidence introduced at trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt,” which was not the proper standard of review. Gomillion v. State, 296 Ga. 678 , 769 S.E.2d 914 , 2015 Ga. LEXIS 150 (2015).

Defendant was entitled to a new trial because the order denying the defendant’s motion for a new trial made only the legal determination that the evidence was sufficient under Jackson v. Virginia, and did not show that the successor judge exercised discretion, weighed evidence, and acted as the thirteenth juror in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205 , 767 S.E.2d 798 , 2014 Ga. App. LEXIS 769 (2014).

Trial court erred by denying the defendant’s motion for new trial as abandoned instead of ruling on the merits of the defendant’s arguments that the verdict of the jury was contrary to evidence and the principles of justice and equity and was contrary to the weight of evidence because counsel’s failure to file a brief on the hearsay issues constituted an abandonment of the opportunity to make further argument on those issues rather than the entire motion for new trial. Wilson v. State, 349 Ga. App. 386 , 825 S.E.2d 843 , 2019 Ga. App. LEXIS 166 (2019).

Denial of defendant’s motion for new trial upheld. —

It was not an abuse of discretion to deny a new trial motion brought by a trustee who was found to have breached the trustee’s fiduciary duty to trust beneficiaries by making distributions to a cotrustee under a trust’s encroachment provision because the trustee breached the trustee’s duty to protect the trust corpus as: (1) the trustee inconsistently required the cotrustee to provide supporting evidence for corpus distributions and let the cotrustee exceed an allotted budget; and (2) the beneficiaries were damaged by the resulting reduction in trust corpus. Reliance Trust Co. v. Candler, 315 Ga. App. 495 , 726 S.E.2d 636 , 2012 Ga. App. LEXIS 336 (2012), aff'd in part and rev'd in part, 294 Ga. 15 , 751 S.E.2d 47 , 2013 Ga. LEXIS 888 (2013), vacated in part, 327 Ga. App. 231 , 761 S.E.2d 356 , 2014 Ga. App. LEXIS 299 (2014).

Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and 5-5-21 , the language used by the trial court in the court’s discretionary determinations that the evidence at trial was not “sufficiently close” to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court’s discretion under the relevant statutory provisions. Brockman v. State, 292 Ga. 707 , 739 S.E.2d 332 , 2013 Ga. LEXIS 201, cert. denied, 571 U.S. 995, 134 S. Ct. 521 , 187 L. Ed. 2 d 375, 2013 U.S. LEXIS 7839 (2013).

There was no merit to the defendant’s claim that a new trial on kidnapping charges was warranted on general grounds because the trial court’s statement that the evidence against the defendant was very substantial, the verdict was not against the weight of the evidence, the evidence supported the verdict, and the verdict was not contrary to the evidence showed that the trial court understood the court’s discretion and declined to exercise discretion. Alexander v. State, 348 Ga. App. 859 , 825 S.E.2d 405 , 2019 Ga. App. LEXIS 100 (2019).

Incorrect standard applied. —

Trial court applied the wrong standard when reviewing the defendant’s motion for a new trial based on general grounds, applying the sufficiency of the evidence standard rather than the standard embodied in O.C.G.A. §§ 5-5-20 and 5-5-21 . Atkins v. State, 342 Ga. App. 849 , 805 S.E.2d 612 , 2017 Ga. App. LEXIS 423 (2017).

Trial court’s attention was clearly directed to the court’s discretion under O.C.G.A. §§ 5-5-20 and 5-5-21 , and there was no indication that the court failed to exercise the court’s discretion in denying the new trial motion. Wilson v. State, 302 Ga. 106 , 805 S.E.2d 98 , 2017 Ga. LEXIS 776 (2017).

Trial court failed to exercise the court’s discretion as the “thirteenth juror” because, rather than reweighing the evidence presented at trial, the court applied a sufficiency-of-evidence standard when the court considered the defendant’s motion for new trial on general grounds. Holmes v. State, 306 Ga. 524 , 832 S.E.2d 392 , 2019 Ga. LEXIS 521 (2019).

Because the trial court failed to apply the proper standard when considering the defendant’s motion for new trial as the court found that the testimony of the victim and the investigator was sufficient under the Jackson v. Virginia, 443 U.S. 307 (1979) standard, the judgment was vacated and the case was remanded for consideration of the motion for new trial under the proper legal standard. Cook v. State, 351 Ga. App. 845 , 833 S.E.2d 544 , 2019 Ga. App. LEXIS 508 (2019).

When the evidence supports judgment rendered without jury. —

When the evidence is sufficient to support the judgment of the court trying the case by agreement without intervention of the jury, on a motion for new trial, the verdict will not be disturbed by the appellate court. Carter v. State, 77 Ga. App. 60 , 47 S.E.2d 815 , 1948 Ga. App. LEXIS 493 (1948).

Function of appellate court in reviewing verdict. —

Barring error by the trial court, the jury’s verdict must be upheld unless it can be shown that there is no substantial evidence to support the verdict, considering the evidence in the light most favorable to appellees, and clothing the verdict with all reasonable inferences to be deduced therefrom. Thus, the United States Court of Appeals’ sole function is to ascertain if there is a rational basis in the record for the jury’s verdict. Columbus Bank & Trust Co. v. Cohn, 644 F.2d 1040, 1981 U.S. App. LEXIS 13430 (5th Cir. 1981).

Trial courts have discretion to grant a new trial on the grounds set forth in O.C.G.A. §§ 5-5-20 and 5-5-21 , but appellate courts do not. Appellate review is limited to the legal sufficiency of the evidence; even when asked to review a trial court’s refusal to grant a new trial on the general grounds, the appellate court must review the case under the sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Plez v. State, 300 Ga. 505 , 796 S.E.2d 704 , 2017 Ga. LEXIS 54 (2017).

Evidence viewed in light most favorable to upholding verdict. —

It is of no consequence on review of the denial of a motion for new trial based on the sufficiency of the evidence that the evidence adduced at trial would have authorized a verdict for either party. A reviewing court must view the evidence in a light most favorable to upholding the jury’s verdict and any evidence which supports the jury’s verdict is sufficient to sustain the trial court’s denial of a motion for new trial based on the sufficiency of the evidence. Clark v. United Ins. Co. of Am., 199 Ga. App. 1 , 404 S.E.2d 149 , 1991 Ga. App. LEXIS 358 (1991).

General Consideration

General grounds for new trial are addressed to discretion of trial judge. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Authority to grant new trial. —

No court except the trial court is vested by O.C.G.A. §§ 5-5-20 and 5-5-21 with the authority to grant a new trial in a matter relating to the weight of the evidence. Clark v. State, 249 Ga. App. 97 , 547 S.E.2d 734 , 2001 Ga. App. LEXIS 458 (2001), cert. dismissed, No. S01C1171, 2001 Ga. LEXIS 745 (Ga. Sept. 17, 2001).

Defendant claimed on appeal that a conviction for the unauthorized possession of drugs by an inmate, in violation of O.C.G.A. § 42-5-18(b) , was contrary to law, contrary to the evidence, and against the weight of the evidence, and that, on that basis, it was error for the trial court to deny a motion for a new trial, but, under O.C.G.A. § 5-5-21 , only the trial court had the authority to grant a new trial on the ground that the verdict was contrary to the weight of the evidence. Collinsworth v. State, 276 Ga. App. 58 , 622 S.E.2d 419 , 2005 Ga. App. LEXIS 1146 (2005).

Defendant’s argument that the verdict convicting the defendant of the involuntary manslaughter of defendant’s 17-month-old son was decidedly and strongly against the weight of the evidence could only be made to a trial court in a motion for new trial, not to an appellate court on appeal. The appellate court did not have the discretion to grant a new trial on these grounds. Lewis v. State, 304 Ga. App. 831 , 698 S.E.2d 365 , 2010 Ga. App. LEXIS 626 (2010), cert. denied, No. S10C1868, 2011 Ga. LEXIS 73 (Ga. Jan. 13, 2011).

Trial court’s attention was clearly directed to the court’s discretion under O.C.G.A. §§ 5-5-20 and 5-5-21 , and there was no indication that the court failed to exercise the court’s discretion in denying the new trial motion. Wilson v. State, 302 Ga. 106 , 805 S.E.2d 98 , 2017 Ga. LEXIS 776 (2017).

Discretion rests solely with trial judge. —

Discretion to grant or refuse motions for new trials because verdict is strongly and decidedly against weight of evidence rests solely in presiding judge. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932); Turner v. Masonic Relief Ass'n, 52 Ga. App. 374 , 183 S.E. 350 , 1936 Ga. App. LEXIS 635 (1936).

Trial judge alone has the authority to grant new trial on ground that the verdict is strongly and decidedly against weight of evidence. Josey v. State, 197 Ga. 82 , 28 S.E.2d 290 , 1943 Ga. LEXIS 461 (1943); Wright v. State, 173 Ga. App. 408 , 326 S.E.2d 584 , 1985 Ga. App. LEXIS 2630 (1985); Hood v. State, 192 Ga. App. 150 , 384 S.E.2d 242 , 1989 Ga. App. LEXIS 942 (1989); Dixon v. State, 192 Ga. App. 845 , 386 S.E.2d 719 , 1989 Ga. App. LEXIS 1226 (1989); Madaris v. State, 207 Ga. App. 145 , 427 S.E.2d 110 , 1993 Ga. App. LEXIS 103 (1993).

Evidence supported the defendant’s malice murder conviction when the defendant shot the victim because the defendant believed the victim took $400 and the defendant’s phone, given that a witness saw the defendant meet the victim at the door of the defendant’s house, call the victim a bitch, and yank the victim’s arm, then the witness heard a gunshot, and the defendant admitted shooting the victim but claimed it was accidental. Furthermore, the trial court did not err in denying a motion for new trial on general grounds. Smith v. State, 300 Ga. 532 , 796 S.E.2d 671 , 2017 Ga. LEXIS 36 (2017).

Motion for new trial based on O.C.G.A. § 5-5-20 , i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on O.C.G.A. § 5-5-21 , i.e., that the verdict is strongly against the evidence, is a decision that is solely in the discretion of the trial court. An appellate court considers only the sufficiency of the evidence before the jury. Henderson v. State, 304 Ga. 733 , 822 S.E.2d 228 , 2018 Ga. LEXIS 790 (2018).

Duty upon trial judge to exercise discretion. —

Motion for a new trial on grounds set forth in former Code 1933, §§ 70-202 and 70-206 (see O.C.G.A. §§ 5-5-520 and 5-5-21 ) addressed the sound legal discretion of the trial judge and the law imposes upon the judge the duty of exercising this discretion. Kendrick v. Kendrick, 218 Ga. 460 , 128 S.E.2d 496 , 1962 Ga. LEXIS 531 (1962); Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant’s motion for new trial under O.C.G.A. § 5-5-21 . The issue was not whether the evidence was sufficient to support the verdict, but whether the verdict was against the weight of the evidence. Manuel v. State, 289 Ga. 383 , 711 S.E.2d 676 , 2011 Ga. LEXIS 475 (2011).

When faced with a motion for new trial based on general grounds, the trial court had the duty to exercise the court’s discretion and weigh the evidence. The trial court did not exercise the court’s discretion when the court evaluated the general grounds by applying the standard of Jackson v. Virginia, 443 U.S. 307 (1979) to a motion for new trial based on the general grounds embodied in O.C.G.A. §§ 5-5-20 and 5-5-21 . Walker v. State, 292 Ga. 262 , 737 S.E.2d 311 , 2013 Ga. LEXIS 3 (2013).

Trial court failed to apply the proper standard in assessing the weight of the evidence as requested by the defendant in the defendant’s motion for new trial, requiring remand for the trial court to apply the proper standard to the general grounds and to exercise the court’s discretion to sit as a thirteenth juror pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 . White v. State, 293 Ga. 523 , 753 S.E.2d 115 , 2013 Ga. LEXIS 642 (2013).

Appellate court vacated the trial court’s decision denying the defendant’s motion for new trial because the record failed to indicate that the trial court fulfilled the court’s duty of exercising the court’s discretion under the applicable standard set forth in O.C.G.A. § 5-5-21 . Gordon v. State, 329 Ga. App. 2 , 763 S.E.2d 357 , 2014 Ga. App. LEXIS 605 (2014).

In a murder case, the record indicated that, contrary to the defendant’s contention, the trial court was aware of and exercised the court’s discretion to weigh the evidence in the court’s consideration of the defendant’s motion for new trial on the general grounds under O.C.G.A. §§ 5-5-20 and 5-5-21 because the trial court specifically responded that the court would not grant a new trial as the thirteenth juror. Allen v. State, 296 Ga. 738 , 770 S.E.2d 625 , 2015 Ga. LEXIS 181 (2015).

Because the trial court expressly and incorrectly stated that the defendant had not advanced the issue that the trial court did not act as the thirteenth juror, the trial court erred in denying the defendant’s motion for a new trial, and the case was remanded solely for the trial court to consider the court’s discretion to sit as the thirteenth juror. King v. State, 344 Ga. App. 244 , 809 S.E.2d 824 , 2018 Ga. App. LEXIS 10 (2018).

When the defendant’s post-conviction counsel argued at a new trial hearing that a successor judge should grant a new trial on the general grounds, counsel knew that the judge planned to review only those portions of the trial transcript that counsel presented; counsel therefore waived any complaint that the judge failed to conduct a full general-grounds review of all of the evidence under O.C.G.A. §§ 5-5-20 and 5-5-21 . However, a successor judge should consider all of the trial evidence. Hill v. State, 310 Ga. 180 , 850 S.E.2d 110 , 2020 Ga. LEXIS 750 (2020).

Discretion to grant new trials should be exercised with caution. Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 , 1978 Ga. LEXIS 1183 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059 , 59 L. Ed. 2 d 97, 1979 U.S. LEXIS 663 (1979).

New trial should be granted only when evidence preponderates heavily against verdict. —

Power to grant new trial under this section should be invoked only in exceptional cases in which evidence preponderates heavily against verdict. Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 , 1978 Ga. LEXIS 1183 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059 , 59 L. Ed. 2 d 97, 1979 U.S. LEXIS 663 (1979) (see O.C.G.A. § 5-5-20 ).

Discretion duty applies no matter how many verdicts have gone against movant. —

In all cases when motion for new trial is being passed on by trial judge, no matter how many verdicts have gone against losing party, law places on the judge a solemn responsibility to exercise discretion in granting or refusing new trial. Mills v. State, 188 Ga. 616 , 4 S.E.2d 453 , 1939 Ga. LEXIS 581 (1939).

Discretion given trial courts and limitations on appellate review. —

Trial courts have discretion to grant a new trial on the grounds set forth in O.C.G.A. §§ 5-5-20 and 5-5-21 , but appellate courts do not. Appellate review is limited to the legal sufficiency of the evidence; even when asked to review a trial court’s refusal to grant a new trial on the general grounds, the appellate court must review the case under the sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Plez v. State, 300 Ga. 505 , 796 S.E.2d 704 , 2017 Ga. LEXIS 54 (2017).

Trial court applied incorrect standard. —

Although the evidence was sufficient to convict the defendant as a party of sexual exploitation of children, aggravated sodomy, child molestation, and first degree cruelty to children, the judgment was vacated because the successor judge erred in denying the defendant’s motion for a new trial as there was no evidence that the successor judge reviewed the evidence under the appropriate discretionary standard in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205 , 767 S.E.2d 798 , 2014 Ga. App. LEXIS 826 (2014), cert. denied, No. S15C0648, 2015 Ga. LEXIS 209 (Ga. Mar. 30, 2015).

Trial court applied the wrong standard when reviewing the defendant’s motion for a new trial based on general grounds, applying the sufficiency of the evidence standard rather than the standard embodied in O.C.G.A. §§ 5-5-20 and 5-5-21 . Atkins v. State, 342 Ga. App. 849 , 805 S.E.2d 612 , 2017 Ga. App. LEXIS 423 (2017).

Because the trial court failed to apply the proper standard when considering the defendant’s motion for new trial as the court found that the testimony of the victim and the investigator was sufficient under the Jackson v. Virginia, 443 U.S. 307 (1979) standard, the judgment was vacated and the case was remanded for consideration of the motion for new trial under the proper legal standard. Cook v. State, 351 Ga. App. 845 , 833 S.E.2d 544 , 2019 Ga. App. LEXIS 508 (2019).

On motion for new trial, court may weigh evidence and consider credibility of witnesses. If court reaches conclusion that verdict is contrary to weight of evidence and that miscarriage of justice may have resulted, verdict may be set aside and new trial granted. Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 , 1978 Ga. LEXIS 1183 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059 , 59 L. Ed. 2 d 97, 1979 U.S. LEXIS 663 (1979).

Trial court did not apply the wrong standard in denying a defendant’s motion for new trial by noting, in response to the defendant’s argument that the eyewitnesses were not credible, that the credibility of the witnesses was for the jury unless “they were just way in left field.” Tolbert v. State, 313 Ga. App. 46 , 720 S.E.2d 244 , 2011 Ga. App. LEXIS 1005 (2011), cert. denied, No. S12C0603, 2012 Ga. LEXIS 723 (Ga. Sept. 10, 2012).

Role of court as thirteenth juror. —

Although the trial court exercised the court’s discretion as the thirteenth juror to assess the credibility of at least one witness, the court failed to properly fulfill the court’s affirmative statutory duty to independently weigh the trial evidence and identify any offending testimony. It was incumbent upon the trial court to then examine and weigh the remaining evidence and independently consider whether the jury’s verdict was contrary to the evidence or was against the weight of the evidence. State v. Reid, 331 Ga. App. 275 , 770 S.E.2d 665 , 2015 Ga. App. LEXIS 136 (2015).

Following the defendant’s felony murder trial, the trial court’s order explicitly stated that the court declined to “exercise its discretion as a ‘thirteenth juror”’ only after weighing “the motion, the record of the case, and arguments of counsel” and finding both that the court believed there was sufficient evidence for the verdict and that the verdict “did not violate principles of justice and equity”. Contrary to the defendant’s argument, the trial court used the correct standard. Lowery v. State, 310 Ga. 360 , 851 S.E.2d 538 , 2020 Ga. LEXIS 765 (2020).

Failure to exercise discretion. —

Because the trial court specifically stated in its order that it was denying the defendant’s motion for new trial after consideration of the pleadings, the transcript of proceedings, and the applicable law, the trial court did not state the incorrect standard in its order, and nothing in the record indicated that the court was unaware of the court’s responsibility to exercise the court’s discretion as the thirteenth juror. Hodges v. State, 309 Ga. 590 , 847 S.E.2d 538 , 2020 Ga. LEXIS 585 (2020).

In an action for child molestation, rape, and terroristic threats, the successor judge failed to exercise discretion in the review of the defendant’s “general grounds” argument as there was no evidence that the successor judge exercised discretion, weighed the evidence, and determined as the “thirteenth juror” whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Bernal v. State, 358 Ga. App. 681 , 856 S.E.2d 64 , 2021 Ga. App. LEXIS 118 (2021).

Motion for JNOV considered as motion for new trial. —

Although a father’s motion seeking relief from a child support order was styled as a JNOV, and there had been no jury verdict, the trial court had plenary authority to consider it as a motion for new trial under O.C.G.A. § 5-5-20 or O.C.G.A. § 5-5-21 , or a motion to set aside the judgment, based on the substance of the motion. Wheeler v. Akins, 327 Ga. App. 830 , 761 S.E.2d 383 , 2014 Ga. App. LEXIS 434 (2014).

Appellate court must presume trial court exercised discretion. —

Although a trial court’s order denying the defendant’s motion for new trial did not state that the trial court exercised the court’s discretion as a thirteenth juror, the appellate court presumed that the trial court knew the rule as to the necessity of exercising the court’s discretion in granting or refusing new trials; the order denying a new trial was taken to mean that the judge had, in the exercise of his or her discretion, approved the verdict. Butts v. State, 297 Ga. 766 , 778 S.E.2d 205 , 2015 Ga. LEXIS 696 (2015).

Although the trial court’s order denying the defendant’s motion for new trial did not explicitly state that the court exercised the court’s broad discretion as the thirteenth juror, the appellate court presumed that the trial judge knew the rule as to the necessity of exercising the judge’s discretion, and that the judge did exercise discretion, in the absence of evidence to the contrary. Morris v. State, 303 Ga. 192 , 811 S.E.2d 321 , 2018 Ga. LEXIS 134 (2018).

All conflicts are resolved to favor verdict in determining whether there is any evidence supporting the verdict. Drake v. State, 241 Ga. 583 , 247 S.E.2d 57 , 1978 Ga. LEXIS 1053 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265 , 59 L. Ed. 2 d 485 (1979).

Inference in favor of verdict. —

After verdict, in passing upon motion for new trial, that view of the evidence which is most unfavorable to the accused must be taken, for every presumption and every inference is in favor of the verdict. Brown v. State, 71 Ga. App. 522 , 31 S.E.2d 85 , 1944 Ga. App. LEXIS 145 (1944).

Motion for new trial must be made before trial court. —

Argument that the verdict was against the weight of the evidence may only be made to a trial court in a motion for new trial and not to the appellate court on appeal as the appellate court has no discretion to grant a new trial based on such a claim. Teele v. State, 319 Ga. App. 448 , 738 S.E.2d 277 , 2012 Ga. App. LEXIS 1063 (2012), cert. denied, No. S13C0640, 2013 Ga. LEXIS 528 (Ga. June 3, 2013).

Judgment Notwithstanding Verdict

New trial may be granted without demanding a judgment n.o.v. for the weight of evidence may be on one side, yet there be some to the contrary. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Motion for judgment n.o.v. may be denied without precluding grant of new trial; for though there may be some evidence, the verdict may still be against the weight of the evidence. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Denial of new trial on general grounds unexcepted to preclude judgment notwithstanding verdict on appeal. —

When trial judge denies motion for new trial on general grounds, the judge finds that verdict is not against weight of evidence and therefore, of necessity, that there is evidence to support the verdict. That determination being unexcepted to, the law of the case is established and the appellate court cannot find on motion for judgment n.o.v. that there is no evidence to support verdict or that evidence demands a verdict for the movant. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Application

Proper standard of review. —

In a prosecution for, inter alia, hijacking a motor vehicle, a trial court incorrectly applied the standard in Jackson v. Virginia, 443 U.S. 307 (1979), when deciding a defendant’s challenge in a motion for a new trial as to the weight of the evidence; the trial court had to reconsider the claim pursuant to O.C.G.A. § 5-5-21 . Rutland v. State, 296 Ga. App. 471 , 675 S.E.2d 506 , 2009 Ga. App. LEXIS 259 (2009).

Trial court, on the court’s own motion, did not err in granting the defendant a new trial on general grounds because the trial court’s written order unequivocally applied the correct standard of review in granting the new trial, explaining that the court was granting a new trial because the verdict was contrary to the evidence and principles of justice and equity. State v. Hamilton, 306 Ga. 678 , 832 S.E.2d 836 , 2019 Ga. LEXIS 596 (2019).

Jury’s fact finding not final until verdict approved when motion for new trial is made. —

No finding of fact by jury is final or conclusive when motion for new trial is presented, unless and until that verdict is approved by trial judge. Mills v. State, 188 Ga. 616 , 4 S.E.2d 453 , 1939 Ga. LEXIS 581 (1939).

Trial court’s written order granting a new trial on the general grounds was in compliance with the requirements of O.C.G.A. § 5-5-51 . Jackson Nat'l Life Ins. Co. v. Snead, 231 Ga. App. 406 , 499 S.E.2d 173 , 1998 Ga. App. LEXIS 487 (1998), cert. denied, No. S98C1098, 1998 Ga. LEXIS 759 (Ga. June 26, 1998).

There was no merit to the defendant’s claim that a new trial on kidnapping charges was warranted on general grounds because the trial court’s statement that the evidence against the defendant was very substantial, the verdict was not against the weight of the evidence, the evidence supported the verdict, and the verdict was not contrary to the evidence as the evidence showed that the trial court understood the court’s discretion and declined to exercise discretion. Alexander v. State, 348 Ga. App. 859 , 825 S.E.2d 405 , 2019 Ga. App. LEXIS 100 (2019).

Denial of new trial becomes law of case. —

Absent specific appeal from ruling on motion for new trial or enumerating the ruling as error, denial of motion becomes law of case as to all grounds contained therein. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

No double jeopardy bar. —

Grant of new trial under former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20 ) or former Code 1933, § 70-206 (see O.C.G.A. § 5-5-21 ) did not result in statutory double jeopardy bar under Ga. L. 1968, p. 1249, § 1 (see O.C.G.A. § 16-1-8(d)(2)). Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

Successful motion for new trial at trial level, precludes later plea of former jeopardy. —

Motion for new trial, if granted at trial level, is a forfeiture of any right to plead former jeopardy because of grant of new trial. Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

Grant of new trial under section not same as finding evidence legally insufficient. —

Grant of new trial by trial court on ground that verdict is against the weight of evidence under this section, does not amount to a finding that evidence is legally insufficient, and does not thereby bar a second trial under the double jeopardy clause of the U.S. Constitution. Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 , 1978 Ga. LEXIS 1183 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059 , 59 L. Ed. 2 d 97, 1979 U.S. LEXIS 663 (1979).

Distinction between legally insufficient evidence and verdict against weight of evidence. —

There is a distinction at law between a decision holding the evidence legally insufficient and a discretionary decision of the trial court that the verdict is against the weight of the evidence. Ricketts v. Williams, 242 Ga. 303 , 248 S.E.2d 673 , 1978 Ga. LEXIS 1183 (1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1059 , 59 L. Ed. 2 d 97, 1979 U.S. LEXIS 663 (1979).

Trial court’s review of the evidence under O.C.G.A. § 5-5-21 differs from its review of the evidence on a motion for a directed verdict under O.C.G.A. § 17-9-1 . In the latter case, the trial court has a duty to grant a directed verdict of acquittal when there is no conflict in the evidence and it clearly demands a verdict of acquittal as a matter of law. Lavertu v. State, 325 Ga. App. 709 , 754 S.E.2d 663 , 2014 Ga. App. LEXIS 56 (2014).

When some evidence supports verdict. —

When trial judge has exercised discretion vested in the judge by law, and there is some evidence to support the verdict, the judgment overruling general grounds of motion for new trial is not error. Kendrick v. Kendrick, 218 Ga. 460 , 128 S.E.2d 496 , 1962 Ga. LEXIS 531 (1962).

Because the state proved venue through testimony that the address of the crime scene was in a specific county and because counsel’s actions were within the bounds of reasonable professional conduct, the trial court properly denied the defendant’s motion for a new trial. Henry v. State, 279 Ga. 615 , 619 S.E.2d 609 , 2005 Ga. LEXIS 504 (2005).

Trial court did not err in denying DUI defendant’s motion for new trial under O.C.G.A. § 5-5-21 based on the lack of definitive evidence of intoxication from field sobriety tests and the defendant’s acquittal on the charge of failure to maintain a lane because the defendant’s blood alcohol level was 0.159 and two or three empty airplane-size vodka bottles were in the defendant’s car. Lavertu v. State, 325 Ga. App. 709 , 754 S.E.2d 663 , 2014 Ga. App. LEXIS 56 (2014).

Sufficient evidence supported the defendant’s conviction for armed robbery and other crimes based on the victim identifying the defendant as one of the two robbers and as the robber who had struck the victim with a gun and the defendant was apprehended a short distance from the attack in possession of the victim’s backpack and a pistol within minutes of the attack. Cooper v. State, 342 Ga. App. 351 , 801 S.E.2d 589 , 2017 Ga. App. LEXIS 236 (2017), cert. denied, No. S17C2017, 2018 Ga. LEXIS 7 (Ga. Jan. 16, 2018), cert. dismissed, No. S17C2022, 2018 Ga. LEXIS 10 (Ga. Jan. 16, 2018), cert. denied, 138 S. Ct. 2039 , 201 L. Ed. 2 d 288, 2018 U.S. LEXIS 3176 (2018).

In a suit resulting in a $ 2.2 million jury verdict for a passenger on a gambling ship who fell into a hatch that was open and unwatched, the evidence supported the jury’s attribution of 100 percent of the fault to the ship owner, given that a worker was supposed to be guarding the hatch but was not at the time the passenger fell, and there was no evidence that the passenger was at fault. Golden Isles Cruise Lines, Inc. v. Lowie, 350 Ga. App. 1 , 827 S.E.2d 703 , 2019 Ga. App. LEXIS 232 (2019).

Expert evidence. —

Driver’s motion for a new trial was properly denied when an expert witness in the field of accident reconstruction opined that the second driver’s collision was unavoidable since the driver changed lanes immediately in front of the second driver’s vehicle. Flynn v. Mack, 259 Ga. App. 882 , 578 S.E.2d 488 , 2003 Ga. App. LEXIS 243 (2003), cert. denied, No. S03C0959, 2003 Ga. LEXIS 578 (Ga. June 2, 2003).

In a suit when plaintiff mulch seller sought money owed for plastic mulch, and defendants, two individuals doing business as a company, counterclaimed regarding crop damage due to the mulch deteriorating prematurely, the trial court did not abuse the court’s discretion in denying the company’s motion for a new trial after the jury returned a verdict in the seller’s favor because, despite the company’s claim on appeal that the evidence supported a finding of breach of express warranty, the testimony of the seller’s vice-president that the seller advised customers on the order form that it could not provide a warranty, provided some evidence to support the verdict. McLeod v. Robbins Ass'n, 260 Ga. App. 347 , 579 S.E.2d 748 , 2003 Ga. App. LEXIS 283 (2003).

Inadequacy of damages for pain and suffering. —

Amount of damages returned by jury in verdict, for pain and suffering, sustained because of alleged negligence, being governed by no other standard than enlightened conscience of impartial jurors, the question of inadequacy of verdict is not one which can be raised by general grounds in motion for new trial. Trammell v. Atlanta Coach Co., 51 Ga. App. 705 , 181 S.E. 315 , 1935 Ga. App. LEXIS 446 (1935); Brown v. Garcia, 154 Ga. App. 837 , 270 S.E.2d 63 , 1980 Ga. App. LEXIS 2409 (1980).

Improper award of damages. —

Trial court erred in denying defendants’ motion for a new trial pursuant to O.C.G.A. § 5-5-21 in an action by a produce company and a storage company for damages which arose from an alleged joint venture to grow onions, and the packing, grading, and storage of onions thereafter; the trial court erred in awarding the produce company the total amount of lost profits for onions which the defendant did not account for, as the agreement provided that the defendants and the company would split the profits or losses evenly, and because the storage company failed to provide any evidence of the company’s anticipated expenses, and therefore the company’s proof of lost profits was insufficient as a matter of law. Williamson v. Strickland & Smith, Inc., 263 Ga. App. 431 , 587 S.E.2d 876 , 2003 Ga. App. LEXIS 1230 (2003).

Fact that verdict is generous is not basis for setting verdict aside. —

Trial judge may exercise sound discretion in refusing new trial in case where verdict may be decidedly and strongly against weight of evidence, but a generous verdict will not be set aside merely for that reason. Evans v. Caldwell, 52 Ga. App. 475 , 184 S.E. 440 , 1936 Ga. App. LEXIS 160 (1936), aff'd, 184 Ga. 203 , 190 S.E. 582 , 1937 Ga. LEXIS 459 (1937).

Fact that verdict is large will not prevent approval if any evidence supports the verdict. Southern Ry. v. Brock, 132 Ga. 858 , 64 S.E. 1083 , 1909 Ga. LEXIS 429 (1909).

Although plaintiff introduced more witnesses than defendant, judge’s refusal of new trial is not error. McGriff v. McGriff, 154 Ga. 560 , 115 S.E. 21 , 1922 Ga. LEXIS 419 (1922).

Verdict in favor of party whose evidence does not correspond with pleadings justifies new trial. Western & Atl. R.R. v. Hunt, 116 Ga. 448 , 42 S.E. 785 , 1902 Ga. LEXIS 136 (1902).

Court refusal to accept verdict not abuse of discretion. —

In action concerning a stock sales agreement, trial court did not abuse the court’s discretion in declining to accept a jury verdict that required the defendant specifically to perform the agreement, but also recommended that bank balance and surplus stock in a warehouse be turned over to the defendant. Brown v. Reeves, 168 Ga. App. 403 , 309 S.E.2d 654 , 1983 Ga. App. LEXIS 2790 (1983).

Court abuses discretion by refusing to set aside excessive award. —

Trial judge fails to exercise the discretion vested in the judge by law when the judge agrees that the amounts awarded to the plaintiff by the jury are excessive but refuses to set the amount aside or order a new trial on the basis that the judge does not want to impose the judge’s opinion upon the jury. Story v. Monteith, 176 Ga. App. 853 , 338 S.E.2d 32 , 1985 Ga. App. LEXIS 2448 (1985), rev'd, 255 Ga. 528 , 341 S.E.2d 1 , 1986 Ga. LEXIS 627 (1986).

Newly discovered evidence and alleged perjury insufficient for new trial. —

Trial court did not err in denying a defendant’s motion for a new trial pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 based on newly discovered evidence because the “new” evidence—that the defendant’s girlfriend got “five hundred” from the defendant in connection with the incident—did not come to the defendant’s knowledge since the prior trial, and the girlfriend’s alleged perjury would not in itself constitute grounds for a new trial. Jackson v. State, 294 Ga. App. 555 , 669 S.E.2d 514 , 2008 Ga. App. LEXIS 1231 (2008).

Motion for judgment notwithstanding verdict as motion for new trial in DUI case. —

Assuming that the defendant’s post-verdict motion for judgment notwithstanding the verdict was a motion for new trial, it was, nevertheless, wholly without merit because the evidence was sufficient to convict the defendant of driving under the influence (to the extent that the defendant was a less-safe driver, O.C.G.A. § 40-6-391(a)(1)) because a police officer administered two field-sobriety tests, and defendant exhibited clues of impairment on each. Masood v. State, 313 Ga. App. 549 , 722 S.E.2d 149 , 2012 Ga. App. LEXIS 18 (2012).

Judgment sustaining double jeopardy plea in bar reversed in murder case. —

After a mother and daughter were charged with the murder of the daughter’s boyfriend, the judgment sustaining the double jeopardy plea in bar on the basis of insufficient evidence in the first trial was reversed because there was evidence of a common criminal intent, including the women’s presence, companionship, and conduct before and immediately after the fatal shooting. State v. Cash, 302 Ga. 587 , 807 S.E.2d 405 , 2017 Ga. LEXIS 929 (2017).

New trial properly granted in criminal case. —

After the defendant was found guilty of felony murder and other crimes in connection with the shooting death of the defendant’s ex-husband, the trial court properly exercised the court’s discretion to grant the defendant a new trial on the general grounds because the court concluded that the jury’s guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity; and the supreme court would not disturb the first grant of a new trial based on the general grounds unless the trial court abused the court’s discretion in granting it and the law and the facts demanded the verdict rendered. State v. Hamilton, 299 Ga. 667 , 791 S.E.2d 51 , 2016 Ga. LEXIS 573 (2016).

Trial court did not err in granting the defendant’s motion for new trial on the general grounds because, in the defendant’s first motion for new trial, the defendant did not waive or abandon the defendant’s claims that the verdict was contrary to the evidence and justice, and against the weight of the evidence, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon the defendant’s ineffective assistance claim; and by failing to raise the claims in the defendant’s brief following the evidentiary hearing. State v. Byrd, 341 Ga. App. 421 , 801 S.E.2d 99 , 2017 Ga. App. LEXIS 213 (2017).

Following the defendant’s murder trial, the trial court did not err in granting the defendant’s motion for a new trial on general grounds, sitting as the thirteenth juror, pursuant to O.C.G.A. §§ 5-5-20 and 5-5-21 because the trial court’s written order, although provided by the defendant, did not reveal any improper basis for the grant of a new trial and showed that the trial court properly exercised the court’s discretion. State v. Holmes, 306 Ga. 647 , 832 S.E.2d 777 , 2019 Ga. LEXIS 588 (2019).

Trial court did not err in granting the defendant’s motion for new trial because the witness was a party to the crime of armed robbery as the witness was with the victim before the armed robbery, was present for the robbery’s planning, and had prior knowledge the robbery was going to occur; the witness was present when the armed robbery and shooting occurred, fled the scene with the co-conspirators, and received $50 to stay quiet about the robbery and murder; and the witness’s accomplice testimony was insufficiently corroborated. State v. Grier, 309 Ga. 452 , 847 S.E.2d 313 , 2020 Ga. LEXIS 517 (2020).

New trial properly denied in criminal case. —

Because, at the hearing on the defendant’s motion for new trial, the defendant clarified that the defendant was solely arguing the points raised in the defendant’s amended motion, and the defendant repeatedly stated that the defendant’s claim was that the evidence was insufficient to support the defendant’s convictions, the defendant could not now be heard to complain that the trial court failed to exercise the court’s discretion under O.C.G.A. §§ 5-5-20 and 5-5-21 in finding that the verdict was strongly against the weight of the evidence or contrary to evidence and the principles of justice and equity. Gray v. State, 298 Ga. 885 , 785 S.E.2d 517 , 2016 Ga. LEXIS 310 (2016), overruled in part, Willis v. State, 304 Ga. 686 , 820 S.E.2d 640 , 2018 Ga. LEXIS 685 (2018).

Trial court did not err in denying the defendant’s motion for new trial on general grounds because the victim’s testimony was sufficient to establish that the defendant was a party to armed robbery and aggravated assault. Carter v. State, 339 Ga. App. 140 , 793 S.E.2d 459 , 2016 Ga. App. LEXIS 594 (2016).

Pretermitting whether trial counsel was deficient in not calling the defendant as a witness at a Jackson-Denno hearing, the defendant failed to show prejudice entitling the defendant to a new trial because the defendant testified at trial about the circumstances of giving an inculpatory statement that the defendant spoke with police for more than four hours, that the police falsely told the defendant the police had DNA evidence, that the defendant had not slept in three days, and that the defendant was worried about the defendant’s children. Davis v. State, 350 Ga. App. 69 , 827 S.E.2d 910 , 2019 Ga. App. LEXIS 244 (2019).

Defendant’s claim that the trial court failed to exercise the court’s discretion as the thirteenth juror in denying the defendant’s motion for a new trial failed as the court never explicitly declined to consider the credibility of witnesses or make clear the court’s belief the court had no discretion to grant a new trial despite disagreeing with the jury’s verdict. Massey v. State, 346 Ga. App. 233 , 816 S.E.2d 100 , 2018 Ga. App. LEXIS 354 (2018), cert. denied, No. S18C1571, 2019 Ga. LEXIS 80 (Ga. Jan. 22, 2019).

Language of the trial court’s order did not show that the court failed to exercise discretion by denying the defendant’s motion for a new trial because the trial court expressly addressed the defendant’s argument that the verdict was contrary to the evidence and strongly against the weight of the evidence and concluded that the evidence was sufficient under the case law standard and that the verdict was not contrary to the law and principles of justice. Davis v. State, 350 Ga. App. 69 , 827 S.E.2d 910 , 2019 Ga. App. LEXIS 244 (2019).

Evidence was sufficient to prove that the defendant fatally shot the victim, and that the defendant did not act in self-defense, because the jury was entitled to give greater weight to the evidence that the defendant had a gun cocked and ready before the meeting with the victim, while the victim was unarmed; the defendant told the homeowner to make the scene look like a burglary and threatened the homeowner; the defendant disposed of the gun and clothes; and there was evidence that the defendant was engaged in a felony drug deal at the time of the shooting, which would preclude the defendant’s self-defense claim; thus, the defendant was not entitled to a new trial based on general grounds. Bannister v. State, 306 Ga. 289 , 830 S.E.2d 79 , 2019 Ga. LEXIS 437 (2019).

In the order denying the defendant’s motion for a new trial, because the trial court performed the court’s duty to sit as a thirteenth juror, weighed the evidence, considered the credibility of the witnesses, and found that the verdicts were amply supported by the evidence, and not strongly and decidedly against the weight of the evidence, the defendant’s motion for a new trial on the general grounds was properly denied. Dixon v. State, 309 Ga. 28 , 843 S.E.2d 806 , 2020 Ga. LEXIS 360 (2020).

Following the defendant’s murder trial, the trial court did not err in denying the defendant’s motion for new trial based on the general grounds, O.C.G.A. §§ 5-5-20 and 5-5-21 , because multiple witnesses saw the defendant shoot the victim in a mall parking lot, chase the victim down, and then shoot the victim again; the jury was not required to credit the defendant’s testimony that the victim had a gun. A hearing on the motion was not required. Bundel v. State, 308 Ga. 317 , 840 S.E.2d 349 , 2020 Ga. LEXIS 183 (2020).

Defendant’s murder conviction was supported by evidence that the defendant was a party to the crime, O.C.G.A. § 16-2-20 , although the defendant’s friend was the actual shooter, because the defendant drove the vehicle with the other perpetrators and got out, armed, and confronted the victim before the defendant’s friend shot the victim; defendant then drove the car away with the others and then ran away with the shooter after crashing the car. The trial court did not err in denying the defendant’s motion for a new trial. Williams v. State, 307 Ga. 689 , 838 S.E.2d 314 , 2020 Ga. LEXIS 42 (2020).

Trial court did not err in failing to grant the defendant’s motion for a new trial based upon the general grounds because the trial court’s order set forth the standards applicable, considered the evidence presented at trial in support of the defendant’s conviction for possession of cocaine, and then explained the decision not to exercise the court’s discretion to grant a new trial as the thirteenth juror. Roundtree v. State, 358 Ga. App. 140 , 854 S.E.2d 340 , 2021 Ga. App. LEXIS 21 (2021).

Insufficient evidence of asportation for kidnapping conviction. —

Defendant’s conviction for kidnapping required reversal because the movement of the victim from one bedroom to another did not further isolate the victim or decrease the potential for rescue, thereby posing no significant danger to the victim independent of the danger posed by the sexual assault and rape; thus, the evidence of asportation was insufficient. Sellers v. State, 325 Ga. App. 837 , 755 S.E.2d 232 , 2014 Ga. App. LEXIS 83 (2014), cert. dismissed, No. S14C1238, 2014 Ga. LEXIS 686 (Ga. Sept. 8, 2014).

Trial court did not err in failing to grant the defendant’s motion for a new trial based upon the general grounds because the trial court’s order set forth the standards applicable, considered the evidence presented at trial in support of the defendant’s conviction for possession of cocaine, and then explained the decision not to exercise the court’s discretion to grant a new trial as the thirteenth juror. State v. Grier, 309 Ga. 452 , 847 S.E.2d 313 , 2020 Ga. LEXIS 517 (2020).

Denial of motion for new trial proper in shoplifting case. —

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a new trial with regard to the defendant’s trial for felony shoplifting because the testimony of the store’s loss prevention officer established each element of the crime and provided sufficient evidence to support the conviction. Parham v. State, 320 Ga. App. 676 , 739 S.E.2d 135 , 2013 Ga. App. LEXIS 256 (2013).

Appeal or Certiorari From Denial of New Trial

Appellate court does not have same discretion as trial judge who approved verdict. Southern Ry. v. Brock, 132 Ga. 858 , 64 S.E. 1083 , 1909 Ga. LEXIS 429 (1909).

Supreme Court does not have discretion to grant new trial on grounds enumerated in section; it can only review evidence to determine if there is any evidence to support verdict. Drake v. State, 241 Ga. 583 , 247 S.E.2d 57 , 1978 Ga. LEXIS 1053 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265 , 59 L. Ed. 2 d 485 (1979).

Because the defendant failed to seek a new trial on the general grounds under O.C.G.A. §§ 5-5-20 and 5-5-21 , that the verdict was against the weight of the evidence and contrary to the principles of justice and equity, but rather sought a new trial on the grounds of arguments made at trial, the appellate court could not address these grounds. Slaton v. State, 296 Ga. 122 , 765 S.E.2d 332 , 2014 Ga. LEXIS 884 (2014).

Function of appellate court is to review sufficiency of evidence, not to determine the weight of the evidence. Though evidence might have authorized a different verdict or verdict is supported by only slight evidence or evidence is conflicting or preponderates against the verdict, when no material error of law appears, the appellate court will not disturb the trial judge’s judgment in overruling the motion for new trial. McBowman v. Merry, 104 Ga. App. 454 , 122 S.E.2d 136 , 1961 Ga. App. LEXIS 713 (1961).

Discretion of superior court, on certiorari, to grant new trial in lower court. —

Deaton v. Taliaferro, 80 Ga. App. 685 , 57 S.E.2d 215 , 1950 Ga. App. LEXIS 753 (1950).

First grant of new trial is not normally reviewable by appellate courts. —

First grant of new trial to either party will never be reversed by appellate courts, unless verdict set aside by trial judge was absolutely demanded. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Ruling on a motion for new trial under Code 1933, § 70-206 (see O.C.G.A. § 5-5-21 ) or former Code 1933, § 70-202 (see O.C.G.A. § 5-5-20 ) did not amount to any ruling on evidence as a matter of law, and as a result, first grant of new trial is not normally reviewable by appellate courts. Ricketts v. Williams, 240 Ga. 148 , 240 S.E.2d 41 , 1977 Ga. LEXIS 1426 (1977), vacated, 438 U.S. 902, 98 S. Ct. 3119 , 57 L. Ed. 2 d 1145, 1978 U.S. LEXIS 2356 (1978).

Consideration of all evidence presented at trial. —

Although the jury ultimately acquitted the second defendant for the armed robbery and aggravated assault of one of the victims, the trial court, when considering the general grounds for a new trial, was free to consider all of the evidence presented at trial, including the state offered evidence, namely through an accomplice witness’s testimony, that the second defendant had been involved in the planning and setup of the robbery of that victim. Pender v. State, 311 Ga. 98 , 856 S.E.2d 302 , 2021 Ga. LEXIS 87 (2021).

Sole question on appeal from denial on general grounds. —

Appellate court will not disturb trial court’s refusal to grant new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be character of witnesses. McBowman v. Merry, 104 Ga. App. 454 , 122 S.E.2d 136 , 1961 Ga. App. LEXIS 713 (1961).

On appeal of denial of motion for new trial based on general grounds, sole question for appellate court is whether there is any evidence to support the verdict. Burnet v. Bazemore, 122 Ga. App. 73 , 176 S.E.2d 184 , 1970 Ga. App. LEXIS 784 (1970).

Trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. Ricketson v. Fox, 247 Ga. 162 , 274 S.E.2d 556 , 1981 Ga. LEXIS 648 (1981).

Even though the trial court did not explicitly cite O.C.G.A. §§ 5-5-20 and 5-5-21 , the language used by the trial court in the court’s discretionary determinations that the evidence at trial was not “sufficiently close” to warrant the grant of a new trial as to either the guilt/innocence or the sentencing verdicts indicated that the trial court did in fact exercise the court’s discretion under the relevant statutory provisions. Brockman v. State, 292 Ga. 707 , 739 S.E.2d 332 , 2013 Ga. LEXIS 201, cert. denied, 571 U.S. 995, 134 S. Ct. 521 , 187 L. Ed. 2 d 375, 2013 U.S. LEXIS 7839 (2013).

Defendant’s argument that the verdict was against the weight of the evidence and, therefore, the trial court erred by denying the motion for a new trial was rejected because the trial court’s order clearly indicated that the court considered the general grounds in denying the motion for new trial and therefore the court exercised the court’s discretion. Lamb v. State, 355 Ga. App. 65 , 842 S.E.2d 514 , 2020 Ga. App. LEXIS 253 (2020).

Appellate court cannot set aside verdict on general grounds trial judge could have relied upon. —

In considering case in which verdict of jury has approval of trial judge, appellate court is without power to set verdict aside on general grounds upon which the trial judge, in exercise of the discretion vested in the judge, might have set the verdict aside. Gledhill v. Brown, 44 Ga. App. 670 , 162 S.E. 824 , 1932 Ga. App. LEXIS 449 (1932).

Because two witnesses heard the defendant threaten to use a gun moments prior to the shooting, and eyewitnesses saw the defendant shoot the victim, the evidence was sufficient to convict the defendant of malice murder and other crimes in connection with the shooting death of the victim, and the trial court did not err when the court denied the defendant’s motion for new trial. Batten v. State, 295 Ga. 442 , 761 S.E.2d 70 , 2014 Ga. LEXIS 548 (2014).

Appellate court cannot grant new trial if any evidence supports verdict. —

While appellate division of Municipal Court of Atlanta may grant new trial when no evidence supports the verdict, when there is some evidence on which the verdict could be based, and such verdict has the approval of the trial judge, the appellate division of Municipal Court of Atlanta erred in granting a new trial. Turner v. Masonic Relief Ass'n, 52 Ga. App. 374 , 183 S.E. 350 , 1936 Ga. App. LEXIS 635 (1936).

Contrary to the defendant’s argument, the trial court reviewed the defendant’s motion for new trial under the discretionary thirteenth juror standard based on the court’s own independent review of the trial record and finding no discrepancy between the jury’s conclusions regarding the weight of the evidence and the credibility of the witnesses and the court’s own views of those matters; moreover, the transcript showed clearly that the court understood the court’s obligations as the so-called thirteenth juror. Burney v. State, 299 Ga. 813 , 792 S.E.2d 354 , 2016 Ga. LEXIS 649 (2016).

Defendant could challenge the sufficiency of the evidence by appealing the denial of the defendant’s motion for new trial, even though the defendant did not invoke such a ruling from the court at trial. Jones v. State, 219 Ga. App. 780 , 466 S.E.2d 667 , 1996 Ga. App. LEXIS 10 (1996).

New trial motion denied in criminal case. —

Evidence was sufficient to support the convictions of murder, aggravated assault, and firearm possession in connection with the shooting death of the victim because the evidence showed that: (1) the defendant’s teenage children made a cell phone call to the children’s parents’ home to tell the parents that the children were being followed by a motorcycle rider; (2) as the children arrived home, the defendant exited from the house with a handgun; (3) the defendant fired two warning shots at the rider when the rider rode past; (4) the rider turned the motorcycle around and when the rider rode past the house again, the defendant fired again as the defendant claimed that the rider swerved toward the defendant; and (5) this shot struck the victim, resulting in the victim’s death. Gear v. State, 288 Ga. 500 , 705 S.E.2d 632 , 2011 Ga. LEXIS 95 (2011), overruled, State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 , 2020 Ga. LEXIS 98 (2020).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a new trial because neither the trial court’s order nor the court’s statement during the hearing that the court was “just going to stick by what the jury did,” demonstrated that the court failed to exercise the discretion afforded to it under O.C.G.A. § 5-5-21 and merely showed the court’s manner of expressing that the court was exercising the court’s discretion against setting aside the jury’s verdict. Dixon v. State, 341 Ga. App. 255 , 800 S.E.2d 11 , 2017 Ga. App. LEXIS 176 (2017).

Appellate court had no basis for disturbing the trial court’s exercise of discretion in denying the defendant’s motion for a new trial because the order reflected that the trial court performed the court’s duty using the proper legal standard. Lundy v. State, 341 Ga. App. 767 , 801 S.E.2d 629 , 2017 Ga. App. LEXIS 274 (2017).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for a new trial because sufficient evidence supported the defendant’s convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant’s admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199 , 818 S.E.2d 268 , 2018 Ga. App. LEXIS 485 (2018).

Trial court erred by denying the defendant’s motion for new trial as abandoned instead of ruling on the merits of the defendant’s arguments that the verdict of the jury was contrary to evidence and the principles of justice and equity and was contrary to the weight of evidence because counsel’s failure to file a brief on the hearsay issues constituted an abandonment of the opportunity to make further argument on those issues rather than the entire motion for new trial. Wilson v. State, 349 Ga. App. 386 , 825 S.E.2d 843 , 2019 Ga. App. LEXIS 166 (2019).

Following the defendant’s murder trial, the trial judge properly exercised the judge’s discretion as the thirteenth juror under O.C.G.A. §§ 5-5-20 and 5-5-21 in finding that “the state had presented ample evidence” and that “the evidence was not sufficiently close nor represented a failure of justice in general.” Strother v. State, 305 Ga. 838 , 828 S.E.2d 327 , 2019 Ga. LEXIS 341 (2019).

Trial court did not abuse the court’s discretion by denying the defendant’s motion for new trial on general grounds because several codefendants testified that the defendant was a coconspirator and a participant in the victim’s robbery, there was evidence that the defendant placed the telephone call to summon the victim, that the defendant was the first to confront the victim, and that the robbery was the defendant’s idea. Smith v. State, 350 Ga. App. 336 , 829 S.E.2d 408 , 2019 Ga. App. LEXIS 298 (2019).

Illustrative cases. —

Trial court properly denied defendant’s motion for a new trial despite defendant’s claim that there was insufficient evidence to prove the identity and value of the items which defendant shoplifted, as there was sufficient evidence to prove the identity and value of the items given that: (1) a store manager saw defendant place items from the manager’s store into the trunk of defendant’s car and identified defendant in a showup identification less than 30 minutes later, after the defendant was stopped for shoplifting at a second store; (2) the manager from the first store identified a number of items that were found in the defendant’s trunk as coming from the first store based on the store code markings on the items; and (3) the packages contained pricing labels. Horne v. State, 260 Ga. App. 640 , 580 S.E.2d 644 , 2003 Ga. App. LEXIS 447 (2003).

Because a condemnee did not claim lost profits or business losses, the trial court properly limited the condemnee’s evidence to the value of the property taken and consequential damages to the remainder; because the jury’s valuation was within the range of the evidence, the trial court properly denied the condemnee’s motion for a new trial. Thornton v. DOT, 275 Ga. App. 401 , 620 S.E.2d 621 , 2005 Ga. App. LEXIS 980 (2005), cert. denied, No. S06C0194, 2006 Ga. LEXIS 139 (Ga. Feb. 13, 2006).

In a suit on a guaranty, the trial court did not err in denying a guarantor’s motion for a new trial on general grounds, as the jury’s award fell within the range of damages established by the evidence, the guarantor consented to the bank’s modification of the terms of one of the loans, and the guarantor failed to demonstrate prejudice by the court’s instructions. Beasley v. Wachovia Bank, 277 Ga. App. 698 , 627 S.E.2d 417 , 2006 Ga. App. LEXIS 185 (2006).

Although defendant received effective assistance from trial counsel, because defendant did not waive or abandon defendant’s claims under O.C.G.A. §§ 5-5-20 and 5-5-21 , the trial court erred in denying defendant’s motion for new trial. Hartley v. State, 299 Ga. App. 534 , 683 S.E.2d 109 , 2009 Ga. App. LEXIS 908 (2009).

Trial court did not err in refusing to grant the defendant’s motion for a new trial under O.C.G.A. § 5-5-21 because the evidence establishing that the defendant and the victims had engaged in a heated argument, which escalated to preparations for a physical altercation, was sufficient to sustain the defendant’s voluntary manslaughter conviction, O.C.G.A. § 16-5-2(a) ; given the heated exchange and the defendant’s belief that the defendant was in serious danger, there was sufficient provocation to excite the passion necessary for voluntary manslaughter, and the jury was authorized to reject the defendant’s claim of self-defense under O.C.G.A. § 16-3-21(a) and conclude that the defendant was so influenced and excited that the defendant reacted passionately, rather than simply in self defense, when the defendant shot an unarmed victim. White v. State, 312 Ga. App. 421 , 718 S.E.2d 335 , 2011 Ga. App. LEXIS 974 (2011).

Trial court was aware of the court’s responsibility as the “thirteenth juror” and, despite the court’s mention of the sufficiency of the evidence at trial, the court exercised the court’s discretion accordingly when denying the defendant’s motion for a new trial after citing personal observations of witnesses and evidence at trial. Perdue v. State, 298 Ga. 841 , 785 S.E.2d 291 , 2016 Ga. LEXIS 260 (2016).

Trial court failed to exercise the court’s discretion as the “thirteenth juror” because, rather than reweighing the evidence presented at trial, the court applied a sufficiency-of-evidence standard when the court considered the defendant’s motion for new trial on general grounds. Holmes v. State, 306 Ga. 524 , 832 S.E.2d 392 , 2019 Ga. LEXIS 521 (2019).

Denial of motion for new trial improper. —

Defendant was entitled to a new trial because the order denying the defendant’s motion for a new trial made only the legal determination that the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), and did not show that the successor judge exercised discretion, weighed evidence, and acted as the thirteenth juror in determining whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. Wiggins v. State, 330 Ga. App. 205 , 767 S.E.2d 798 , 2014 Ga. App. LEXIS 769 (2014).

Trial court erred by denying the appellant’s motion for a new trial because the motion hearing transcript clearly showed that the appellant requested the trial court to exercise the court’s discretion to review the evidence as a thirteenth juror, but in the court’s order denying the motion, the trial court stated that, “The testimony and the other evidence introduced at trial was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt,” which was not the proper standard of review. Gomillion v. State, 296 Ga. 678 , 769 S.E.2d 914 , 2015 Ga. LEXIS 150 (2015).

General Consideration

If evidence is admissible for any purpose, the admission of that evidence will not cause a new trial. West v. West, 199 Ga. 378 , 34 S.E.2d 545 , 1945 Ga. LEXIS 322 (1945).

Test as to whether illegal evidence warrants new trial. —

Error of admitting illegal evidence must be such as induced or largely contributed to erroneous finding, and such error that if new trial is granted, result should in all probability be different on another trial. Daughtry v. Savannah & S. Ry., 1 Ga. App. 393 , 58 S.E. 230 , 1907 Ga. App. LEXIS 247 (1907).

When evidence of guilt is overwhelming. —

When evidence is overwhelming that the defendant is guilty, even errors in admission or rejection of testimony will not operate so as to require new trial. Brannon v. State, 21 Ga. App. 328 , 94 S.E. 259 , 1917 Ga. App. LEXIS 588 (1917). But see Thigpen v. Batts, 199 Ga. 161 , 33 S.E.2d 424 , 1945 Ga. LEXIS 276 (1945).

When evidence rejected relates to matter collateral to main transaction, and evidence touching main transaction makes a clear case of guilt, rejection of such evidence does not in all cases require grant of new trial. Green v. State, 154 Ga. 117 , 113 S.E. 536 , 1922 Ga. LEXIS 315 (1922).

Ruling upon admissibility of testimony may be reversed by motion for new trial. Eaves v. Field & Son, 8 Ga. App. 69 , 68 S.E. 556 , 1910 Ga. App. LEXIS 24 (1910).

Admission of illegal testimony on one side will not justify illegal rebutting testimony on other. Two wrongs do not make a right. Housing Auth. v. Kolokuris, 110 Ga. App. 869 , 140 S.E.2d 239 , 1965 Ga. App. LEXIS 1129 (1965).

Evidence not conforming to pleadings, admitted without objection. —

Although pleadings may not present whole issue, if it is fully made by evidence without objection, it is too late, after verdict, for losing party, to make that the ground of a motion for new trial. Metropolitan Life Ins. Co. v. Hale, 47 Ga. App. 674 , 171 S.E. 306 , 1933 Ga. App. LEXIS 597 (1933).

Sufficiency of the evidence. —

Because an accomplice’s testimony was corroborated by defendant’s recent possession of a stolen boat as well as defendant’s flight from the scene of the crime, the evidence was sufficient to convict the defendant of theft by taking; consequently, the trial court properly denied the defendant’s motion for a new trial. Johnson v. State, 275 Ga. App. 161 , 620 S.E.2d 433 , 2005 Ga. App. LEXIS 920 (2005).

There was sufficient evidence to support a defendant’s conviction for felony murder of the love interest of the defendant’s spouse, and the trial court did not err by denying the defendant’s motions for a directed verdict or for a new trial; the trial court properly concluded that the defendant failed to prove by a preponderance of the evidence that the defendant was incompetent to stand trial based on the testimony of a state psychiatrist who determined that the defendant had some intellectual limitations and a problem with literacy, but found the defendant capable of rational and logical discussion about the circumstances of the incident to be tried, was capable of assisting in the defense, and understood the nature and object of the legal proceedings. The trial court also did not err by refusing the defendant’s requested jury charges as the charges either did not relate to the evidence or the charge given was all that was necessary. Velazquez v. State, 282 Ga. 871 , 655 S.E.2d 806 , 2008 Ga. LEXIS 17 (2008).

Inadmissible testimony given on cross examination that is unresponsive to the question. —

While answer that is responsive to question on cross-examination will not be ruled out although it would otherwise have been inadmissible as evidence, testimony that is inadmissible, which is given on cross-examination but is not responsive to question, should be ruled out; and it is error to overrule the motion to exclude it. Mickle v. Moore, 188 Ga. 444 , 4 S.E.2d 217 , 1939 Ga. LEXIS 573 (1939).

Admission of character evidence. —

Because evidence of defendant’s gang membership was admissible both as part of the res gestae of the crime and to show motive, the trial court properly denied the defendant’s motions in limine and for a new trial, even though the evidence implicated defendant’s character. Garibay v. State, 275 Ga. App. 170 , 620 S.E.2d 424 , 2005 Ga. App. LEXIS 919 (2005).

Trial court did not err in denying the defendant’s motion for a mistrial after an investigating officer testified on cross-examination that the defendant gave the officer a statement right after the defendant had talked with the defendant’s parole officer because the testimony followed defense counsel’s question regarding the content, not the timing, of the defendant’s statement; a passing reference to a defendant’s record does not place his or her character in evidence, and a nonresponsive answer that impacts negatively on a defendant’s character does not improperly place his or her character in issue. Lanier v. State, 288 Ga. 109 , 702 S.E.2d 141 , 2010 Ga. LEXIS 815 (2010).

Similar transaction evidence. —

Trial court properly denied defendant’s motion for a new trial, challenging the admission of similar transaction evidence, because the similar transaction evidence properly corroborated the identity, intent, and course of conduct defendant engaged in with regard to two other home invasions with several other perpetrators that also included the rape of a victim. Grier v. State, 290 Ga. App. 59 , 658 S.E.2d 827 , 2008 Ga. App. LEXIS 251 (2008), overruled, State v. Lane, 308 Ga. 10 , 838 S.E.2d 808 , 2020 Ga. LEXIS 98 (2020).

Admission of telephone conversation between defendant and mother. —

Trial court did not abuse the court’s discretion in denying the defendant’s motion for mistrial, which was based on the admission of a recorded telephone conversation between the defendant and defendant’s mother, who stated “because it’s on your record,” in response to why the defendant could not be disappointed if the defendant was denied bond; the comment was fleeting and was not a direct comment about the defendant’s criminal history, and the mother did not comment on the content of the defendant’s criminal record or even say, with certainty, that one did or did not exist. Hamrick v. State, 304 Ga. App. 378 , 696 S.E.2d 403 , 2010 Ga. App. LEXIS 533 (2010), cert. denied, No. S10C1666, 2010 Ga. LEXIS 782 (Ga. Oct. 18, 2010).

Alleged prosecutorial misconduct. —

Because a prosecutor’s comments were directed at defense counsel’s failure to rebut or explain the state’s evidence and the prosecutor made a permissible analogy, there was no prosecutorial misconduct; consequently, the trial court did not err in denying defendant’s motion for a new trial. Duffy v. State, 271 Ga. App. 668 , 610 S.E.2d 620 , 2005 Ga. App. LEXIS 129 (2005), cert. denied, No. S05C1020, 2005 Ga. LEXIS 389 (Ga. May 23, 2005).

Disposition of case on diminished record. —

Trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that the evidence was improperly received at the trial and then dispose of the case on the basis of the diminished record. Mays v. Daniels, 179 Ga. App. 677 , 347 S.E.2d 642 , 1986 Ga. App. LEXIS 1988 (1986).

Coindictee’s statement on polygraph examination. —

Trial court did not abuse the court’s discretion by declining to declare a mistrial when a coindictee testified that the coindictee had taken a polygraph examination because the trial court’s prompt curative instructions to the jury to disregard the coindictee’s statement was sufficient to prevent the testimony from having any prejudicial impact; it was highly improbable that the coindictee’s remarks influenced the outcome of the case, in view of the strong weight of the evidence against the defendant. Gandy v. State, 290 Ga. 166 , 718 S.E.2d 287 , 2011 Ga. LEXIS 933 (2011).

Admission of statement given after waiver of right to counsel. —

Trial court did not err by admitting the defendant’s custodial statement to a police detective because after the defendant invoked the right to counsel, the detective ceased the interrogation and was returning the defendant to jail when the defendant told the detective that the defendant would tell the detective what the detective wanted to know and then gave an incriminating statement upon returning to the room where the interrogation was conducted. Anthony v. State, 315 Ga. App. 701 , 727 S.E.2d 528 , 2012 Ga. App. LEXIS 412 (2012).

Unredacted recording of phone conversation should have been admitted. —

Trial court erred in denying the defendant’s motion for new trial because the court committed harmful error when the court prevented the defendant from playing to the jury an unredacted recording of a phone conversation between a witness and a friend; the witness was essentially acting as an informant, or at least an agent of police investigators, at the time of the phone conversation, and thus, the witness’s recorded statements were admissible as original evidence pursuant to former O.C.G.A. § 24-3-2 (see now O.C.G.A. § 24-8-801 ). Redinburg v. State, 315 Ga. App. 413 , 727 S.E.2d 201 , 2012 Ga. App. LEXIS 382 (2012).

Motion for new trial properly denied. —

Because the police officers saw a vehicle matching a dispatcher’s description shortly after receiving the dispatch, and the vehicle attempted to elude the officers, in violation of O.C.G.A. § 40-6-395(a) , the officers had a specific and articulable reason to stop the vehicle; consequently, the trial court properly denied the defendant’s motions to suppress, in limine, and for a new trial. Francis v. State, 275 Ga. App. 164 , 620 S.E.2d 431 , 2005 Ga. App. LEXIS 921 (2005).

Trial court did not err by denying the defendant’s motion for a mistrial after the jurors watched a portion of the defendant’s videotaped statement, which the jurors were not supposed to view, because the jurors clearly indicated that the jurors could and would follow the trial court’s curative instruction. Alatise v. State, 291 Ga. 428 , 728 S.E.2d 592 , 2012 Ga. LEXIS 571 (2012).