Summary
In Whitehead v. Dillard, 178 Ga. 714, 717 (174 S.E. 244), a case involving the specific performance of an oral agreement to convey lands in consideration of personal services, the exact principle of law relied on by the plaintiff was thus enunciated: "The fairness of a contract is usually to be determined as of its date, and the happening of subsequent events within the reasonable contemplation of the parties does not afford a defense.
Summary of this case from Shaw v. MillerOpinion
48017.
ARGUED APRIL 4, 1973.
DECIDED APRIL 25, 1973.
Appellate procedure. Walton Superior Court. Before Judge Ridgway.
Guy B. Scott, Jr., for appellant.
Erwin, Epting, Gibson Chilivis, Eugene A. Epting, for appellee.
Where a motion for a new trial is sustained, such ruling is not a final disposition of the case. Accordingly it is not appealable without a certificate of immediate review from the trial court. Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); State Hwy. Dept. v. Rosenfeld, 118 Ga. App. 524 ( 164 S.E.2d 259); Pilgreen's Airport, Inc. v. Gold, 122 Ga. App. 194 ( 176 S.E.2d 480). See also Fife v. Johnston, 225 Ga. 447 ( 169 S.E.2d 167) where our Supreme Court recognized that "Cruel though it was for the law to thus authorize a judge to deprive the loser of a right to appeal, we can not say the law is unconstitutional."
In the instant case the trial judge granted a new trial to defendant following a plaintiff's verdict upon the special ground that he had erred in denying defendant's motion for mistrial based on improper statements in the closing argument of plaintiff's attorney. As this was not a new trial granted on the discretionary general grounds, it was appealable, provided appellant had obtained a certificate of immediate review. Rice v. Matthews, 104 Ga. App. 593 (1) ( 122 S.E.2d 175); Southern States, Inc. v. Thomason, 128 Ga. App. 667. The record here containing no requisite certificate, our court is without jurisdiction and the motion to dismiss is sustained.
Appeal dismissed. Hall, P. J., and Evans, J., concur.