Opinion
39981.
DECIDED MARCH 4, 1963.
Action on contract; nonsuit, etc. Fulton Civil Court. Before Judge Smith.
E. H. Stanford, for plaintiffs in error.
W. M. Mathews, Jr., contra.
1. "A motion for a new trial is a means of seeking to have a retrial or re-examination, in the same court, of an issue of fact, or of some part of portion thereof, after decision by a jury, report of a referee, or a decision by the court thereon. It is an application for a retrial of the facts of the case. 2. Thomp. Trials, § 2708; Castellaw v. Blanchard, 106 Ga. 97 ( 31 S.E. 801); 5 Words Phrases, 4788 et seq." Buchanan v. James, 134 Ga. 475 (1) ( 68 S.E. 72).
2. "The grant of a nonsuit terminates the case without a final passing upon the issues of fact by a jury, referee, or judge. It is a ruling by the judge, that the plaintiff, under the evidence presented by him, has not made out such a case as to entitle him to have the jury pass upon the issues of fact. Under the practice in this State, it does not preclude the plaintiff from bringing another action, and seeking to make out his case by the introduction of evidence on the trial thereof." Ibid., (2).
3. "It follows from the distinction which will appear from the two preceding headnotes that where the presiding judge grants a nonsuit, and thus terminates the case before a verdict or decision upon the issues of fact, a motion for a new trial is not the proper mode of testing the correctness of such ruling. See Hudson v. Georgia Pacific Ry. Co., 85 Ga. 203 ( 11 S.E. 605); Central Railroad Co. v. Folds, 86 Ga. 42 ( 12 S.E. 216); Swain v. Macon Fire Ins. Co., 102 Ga. 96, 103 ( 29 S.E. 147); Southern Railway Co. v. James, 114 Ga. 198 ( 39 S.E. 849); City of Atlanta v. Miller, 125 Ga. 495 ( 54 S.E. 538)." Ibid., (3).
4. Inasmuch as the grant of a nonsuit is not reviewable by a motion for new trial there was no error in refusing the plaintiff's motion for new trial made after the grant of the defendants' motion for nonsuit. See also Farmers Union Warehouse c. Co. v. Stewart, 138 Ga. 733 ( 75 S.E. 1131).
Judgment affirmed. Frankum and Jordan, JJ., concur.