GA Code § 5-5-1 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 5 - New Trial|Article 1 - General Provisions|§ 5-5-1. Power of Probate, Superior, State, Juvenile, State-Wide Business, and City of Atlanta Courts

  The superior, state, and juvenile courts, the Georgia State-wide Business Court, and the City Court of Atlanta shall have power to correct errors and grant new trials in cases or collateral issues in any of the respective courts in such manner and under such rules as they may establish according to law and the usages and customs of courts.   Probate courts shall have power to correct errors and grant new trials in civil cases provided for by Article 6 of Chapter 9 of Title 15 under such rules and procedures as apply to the superior courts.    (Laws 1799, Cobb's 1851 Digest, p. 503; Code 1863, § 3636; Code 1868, § 3661; Code 1873, § 3712; Code 1882, § 3712; Civil Code 1895, § 5474; Civil Code 1910, § 6079; Code 1933, § 70-102; Ga. L. 1986, p. 982, § 4; Ga. L. 2000, p. 862, § 1; Ga. L. 2019, p. 845, § 2-1/HB 239.)    The 2019 amendment,  effective May 7, 2019, inserted ", the Georgia State-wide Business Court," near the beginning of subsection (a).   Editor's notes.   - Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.   Law reviews.   - For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For annual survey article, "'Garbage In, Garbage Out': The Litigation Implosion Over the Unconstitutional Organization and Jurisdiction of the City Court of Atlanta," see 52 Mercer L. Rev. 49 (2000). For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 1 (2019).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Penal Code 1895, § 1056 are included in the annotations for this Code section.    Section grants superior courts power to correct errors and grant new trials. Frank v. State, 142 Ga. 741, 83 S.E. 645, 1915D L.R.A. 817, writ of error denied, 235 U.S. 694, 35 S. Ct. 208, 59 L. Ed. 429 (1914) (decided under former Code 1933, § 70-102, at time when section referred only to superior courts; see O.C.G.A. § 5-5-1).    Superior court of the county in which defendant was convicted of murder had authority, on defendant's motion for new trial, to order an expert evaluation of the defendant, who was incarcerated beyond the boundaries of the county in which the court sat. Zant v. Brantley, 261 Ga. 817, 411 S.E.2d 869 (1992).   What constitutes a city court.    - Welborne v. State, 114 Ga. 793, 40 S.E. 857 (1902) (decided under former Penal Code 1895, § 1056).   Municipal courts may hear motions for new trial.    - In a dispossessory action, a municipal court erred in holding that the court lacked jurisdiction to hear a motion for new trial under O.C.G.A. § 5-5-1. The municipal's court enacting legislation, 1983 Ga. Laws 4453-4454, § 33, as well as Ga. Const. 1983, Art. VI, Sec. I, Para. IV, gave the court such jurisdiction. Nelson v. Powell, 293 Ga. App. 227, 666 S.E.2d 598 (2008).    New trials are granted by superior court as a court, not by a presiding judge in the judge's capacity as judge. Allen v. State, 102 Ga. 619, 29 S.E. 470 (1897) (decided under former Penal Code 1895, § 1056).    New trial may be granted after trial before jury and before appeal. Eufaula Home Ins. Co. v. Plant & Cubbedge, 37 Ga. 672 (1868).   Discretion of trial court.    - Trial court is vested with discretion in granting new trials. Martin & Sons v. Bank of Leesburg, 137 Ga. 285, 73 S.E. 387 (1911).    When trial judge refuses to order 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).    Because the defendant did not rebut the presumption that counsel's conduct was within the broad range of professional conduct, because the trial court considered and rejected counsel's motion for a mistrial, and because an eyewitness could testify about the certainty of the eyewitness's identification, the defendant was not entitled to a new trial. Greenwood v. State, 309 Ga. App. 893, 714 S.E.2d 602 (2011).   Certiorari lies though court may grant new trial.    - Although city court may have power to grant new trials, it is an inferior court whose final judgments may be reviewed by superior court upon certiorari. Archie v. State, 99 Ga. 23, 25 S.E. 612 (1896).    First grant of new trial by judge of superior court is never disturbed by appellate court, unless it is made to appear that in doing so the judge manifestly abused the discretion resting in the judge. Law v. Hodges, 53 Ga. App. 319, 185 S.E. 584 (1936).   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).   Bias, passion, prejudice, or mistake must appear to justify setting aside verdict.    - When amount of verdict, though less than appellate court would have approved, does not afford such evidence of bias, passion, prejudice, or mistake as to justify setting the verdict aside as inadequate, the appellate court must affirm the verdict. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).   Presumption that trial judge knew rule as to obligation to approve jury's verdict.    - In interpreting language of order overruling motion for new trial, appellate court must presume that 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 the contrary and that court agreed to verdict against the court'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 jury upon disputed issues of fact. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E. 236 (1944).   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. 236 (1944).   Approval of verdict necessary to finalize verdict when party moves for new trial on general grounds.    - Before verdict becomes final the verdict should, when 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 a case when motion for new trial contains general grounds. Brown v. Service Coach Lines, 71 Ga. App. 437, 31 S.E.2d 236 (1944).    New trial may be granted on condition that plaintiff refuses to agree to reduction in verdict. Bank of Oglethorpe v. Hicks, 15 Ga. App. 92, 82 S.E. 635 (1914); Carter v. Virginia-Carolina Chem. Co., 144 Ga. 488, 87 S.E. 415 (1915); Biggers v. Mathews, 144 Ga. 857, 88 S.E. 190 (1916).    Party may be eliminated by order of appellate court, so judgment is against other defendant. Lovell v. Frankum, 24 Ga. App. 261, 100 S.E. 575 (1919).   Motion for new trial cannot be used to withdraw guilty plea.    - One who has filed plea of guilty in criminal case cannot move for new trial; neither before nor after sentence can a motion for a new trial be employed as a means of withdrawing a plea of guilty. Bearden v. State, 13 Ga. App. 264, 79 S.E. 79 (1913) (decided under former Penal Code 1910, § 1083).   Effect of judge's condemnatory language during sentencing.    - Disqualification to render judgment on motion for new trial does not result from the judge's use of language condemnatory of the accused when imposing sentence. Harrison v. State, 20 Ga. App. 157, 92 S.E. 970 (1917) (decided under former Penal Code 1910, § 1083).   Restriction on superior court's jurisdiction on appeal from probate proceeding.    - When appellant filed a motion in probate court to set aside or amend the probate of a will due to newly discovered evidence of a later will, the probate court properly dismissed the petition for lack of jurisdiction when the appellant was not a party to the original probate; on appeal, the jurisdiction of the superior court was limited to that of the probate court. In re Lott, 171 Ga. App. 25, 318 S.E.2d 688 (1984).   Reconsideration of pretrial ruling on immunity.    - Appellate court erred by reversing a trial court order granting the defendant a new trial because the trial court had the inherent authority to reconsider the court's pretrial ruling on the defendant's motion for immunity from criminal prosecution under O.C.G.A. § 16-3-24.2 and to rule otherwise. Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013).    Cited in Vance v. Gamble, 95 Ga. 730, 22 S.E. 576 (1895); Cowart v. Strickland, 149 Ga. 397, 100 S.E. 447, 7 A.L.R. 1110 (1919); City of Macon v. Herrington, 198 Ga. 576, 32 S.E.2d 517 (1944); Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659, 119 S.E.2d 11 (1961); Bowen v. Ball, 215 Ga. App. 640, 451 S.E.2d 502 (1994); Williams v. State, 307 Ga. 689, 838 S.E.2d 314 (2020).   OPINIONS OF THE ATTORNEY GENERAL    Probate courts do not have the authority to grant new trials.  1986 Op. Att'y Gen. No. U86-13.   RESEARCH REFERENCES   Am. Jur. 2d.   - 58 Am. Jur. 2d, New Trial, § 7 et seq.   18B Am. Jur. Pleading and Practice Forms, New Trial, § 1.   C.J.S.   - 23 C.J.S., Criminal Law, § 1423 et seq. 66 C.J.S., New Trial, § 1 et seq.   ALR.    - Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages awarded, 98 A.L.R. 941; 29 A.L.R.2d 1199.   Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 A.L.R.2d 852.   Grant of new trial on issue of liability alone, without retrial of issue of damages, 34 A.L.R.2d 988.   Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.   Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875.   Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damage, 52 A.L.R.5th 1.