Opinion
35518, 35517.
DECIDED JANUARY 27, 1955.
Damages. Before Judge Reese. Schley Superior Court. November 3, 1954.
Claud N. Morris, for plaintiffs in error.
James S. Wilson, Jr., H. B. Williams, contra.
1. An oral motion to dismiss in the nature of a general demurrer should be overruled if the alleged facts entitle the plaintiff to any of the substantial relief prayed for therein. Sweat v. Arline, 186 Ga. 460 ( 197 S.E. 893); Douglas, A. G. Ry. Co. v. Swindle, 2 Ga. App. 550 ( 59 S.E. 600).
2. While the verdict of a jury and judgment based thereon cannot be set aside on motion except for non-amendable defects appearing on the face of the record, or on a showing that the verdict was obtained by perjury, fraud, accident, or mistake ( Bonner v. State, 63 Ga. App. 464, 11 S.E.2d 431), yet the pleading here, denominated a motion to set aside a verdict and judgment, which complains that the verdict and judgment are contrary to the principles of justice and equity, which sets out facts in support of this contention, and which is supported by a brief of evidence and a prayer that a new trial be granted, is in substance the equivalent of a motion for new trial and may be treated as such. Bell v. Bell, 206 Ga. 194, 196 ( 56 S.E.2d 289). See also Wrenn v. Allen, 180 Ga. 613 (2) ( 180 S.E. 104); Ayer v. James, 120 Ga. 578 (2) ( 48 S.E. 154).
3. Under Code § 6-1608, the first grant of a new trial will not be disturbed unless it appears that the judge abused his discretion in granting it, and that the law and the facts require the verdict notwithstanding the judgment of the presiding judge. Where a verdict is for unliquidated damages, it is not error to grant a new trial even though a verdict for the plaintiff in some amount may be demanded ( Savage v. Atlantic Coast Line R. Co., 16 Ga. App. 537, 85 S.E. 675), since the facts do not require the verdict in the amount rendered. Further, under Code § 70-208, the court may exercise a sound legal discretion in granting or refusing motions for new trial according to the provisions of the common law and practice of the courts. Where it appears from the motion for new trial, brought under this section, that the defendant, without fault or lack of diligence on the part of himself or his counsel, has been precluded from trying his case on its merits in such manner that substantial injustice may have been done to him, it is not an abuse of to grant the original motion for new trial. See Pioneer Mfg. Co. v. Callaway Co., 76 Ga. 105; Cleveland Nat. Bank v. Reynolds, 76 Ga. 834.
The pleading here, considered as a motion for a new trial, sets up facts from which it appears that the defendant's lack of knowledge of the proceedings was through no fault of its own; that it had no knowledge of the proceedings; that the person upon whom service was made had no authority from it to accept service of process; that the defendant had a meritorious defense which would, upon another trial of the case, lead to a contrary result; and that, after being informed of the judgment against it, it immediately used all diligence possible to bring the true facts before the court. The motion, therefore, appears on its face to present such a state of facts that the first grant of a new trial on the part of the judge would not constitute an abuse of discretion. This being so, it was not subject to an oral motion to strike in the nature of a general demurrer, and the trial court did not err in overruling the latter and in considering the motion on its merits.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
DECIDED JANUARY 27, 1955.
George Bivins, driver, and H. C. Robinson, owner of an automobile involved in a collision with a bus of the defendant Modern Coach Corporation, filed similar damage suits against it in the Superior Court of Schley County. The cases were in default and were submitted to juries on the question of damages only, and verdicts were returned for the plaintiffs. At the same term of court the defendant filed in each case a pleading denominated a petition to set aside the verdict and judgment, which pleading alleged in substance the following facts: the collision on which the action was predicated was due solely to the plaintiffs' negligence, and Bivins thereafter admitted that he was unable to stop the automobile which he was driving, and which had defective brakes, and thereafter pleaded guilty to the charge of failing to yield the right of way. Following the collision, there was some litigation between the defendant and passengers on its bus. Almost two years after the collision, these petitions were filed and were served upon the operator of a drug store who sold bus tickets for the defendant on a commission basis and had no other connection with the defendant. The druggist, knowing nothing about the defendant's affairs, assumed that the papers handed him by the sheriff were in connection with the previous litigation, and that the defendant and its attorneys knew of the same; and did not understand that he was being served with process, but tossed the papers in a drawer and forgot all about them, for which reason the defendant knew nothing about the suit and failed to appear or plead. The defendant set out a meritorious defense, and offered, in spite of its contention that no proper service had been made upon it, as it contended by a traverse filed simultaneously with this motion, to go to trial immediately upon the merits and to pay the costs of opening the default, alleging that it relied upon "the very broad discretion and inherent and statutory legal and equitable powers of the trial judge to set aside verdict and grant new trials where the verdict is contrary to the principles of justice and equity." The prayers were that the verdict and judgment be vacated and set aside; that the default be opened; that a new trial be granted; that the defendant have the right to amend this motion and present an approved brief of evidence at any time until hearing, and for a rule nisi and supersedeas. Subsequently a brief of evidence was filed and approved. An oral motion to dismiss the pleading (later reduced to writing) was made on the grounds that no legal or equitable reason for setting aside the verdict and judgment is shown; that no defect not amendable in character appears on the face of the pleadings; that the motion shows service; and that the proper method of determining this issue is by traverse of service rather than a motion to set aside.
The motion to dismiss was denied, and the exception is to this ruling.