Smith v. Telecable of Columbus

238 Ga. 559 (1977)

234 S.E.2d 24

SMITH v. TELECABLE OF COLUMBUS, INC.

32040.

Supreme Court of Georgia.

Submitted February 25, 1977.

Decided March 10, 1977.

L. B. Kent, for appellant.

Freeman & Hawkins, Howell Hollis, Jr., for appellee.

HALL, Justice.

We granted the application for writ of certiorari to review the decision and judgment of the Court of Appeals in Smith v. Telecable of Columbus, 140 Ga. App. 755 (232 SE2d 100) (1976).

The Court of Appeals held that while in its opinion the trial judge erroneously granted the defendant's motion for new trial on a special ground related to the charge, the appellate court was without authority to review the ruling. The holding was based upon Weinkle v. Brunswick &c. R. Co., 107 Ga. 367, 368 (33 SE 471) (1898): "[T]his court will not, under any circumstances, reverse a judgment granting a first new trial, whether the grant be general upon all the grounds of the motion or special upon one or more grounds only, or whether it be upon a ground which involves questions of evidence or upon a ground *560 which involves purely questions of law; unless it is made to appear that no other verdict than the one rendered could possibly have been returned under the law and facts of the case. Unless the case can be brought within the exception just stated, it is useless for parties to bring before this court the judgment of a trial judge granting a first new trial."

"The first grant of a new trial will not be disturbed by this court where the new trial is granted in the discretion of the trial judge on the general grounds, unless the appellant shall show that the trial judge abused his discretion in granting it and that the law and the facts require the verdict notwithstanding the judgment of the trial court. Code Ann. § 6-1608." Berman v. Berman, 231 Ga. 216, 217 (200 SE2d 870) (1973). We hold that the first grant of a new trial on special grounds involving a question of law is reviewable in a proper appeal. See Code § 70-208; Code Ann. §§ 81A-150 (c) and 6-701. The above decision in Weinkle, supra, is overruled.

Judgment reversed and remanded. All the Justices concur.