GA Code § 5-6-36 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 6 - Certiorari and Appeals to Appellate Courts Generally|Article 2 - Appellate Practice|§ 5-6-36. Filing of Motion for New Trial and Motion for Judgment Notwithstanding Verdict Where Appeal Taken From Judgment, Ruling, or Order

  A motion for new trial need not be filed as a condition precedent to appeal or consideration of any judgment, ruling, or order in any case; but, in all cases where a motion for new trial is an available remedy, the party entitled thereto may elect to file the motion first or to appeal directly. However, where matters complained of arise or are discovered subsequent to verdict or judgment which otherwise would not appear in the record, such as newly discovered evidence, and in other like instances, a motion for new trial or other available procedure shall be filed and together with all proceedings thereon shall become a part of the record on appeal. Otherwise, the motion for new trial need not be transmitted as a part of the record on appeal; nor shall it be necessary that the overruling thereof be enumerated as error (subject to the exception last stated), as the appellate court may consider all questions included in the enumeration of errors provided for in Code Section 5-6-40. The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.   A motion for judgment notwithstanding the verdict need not be filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict; but, in all cases where the motion is an available remedy, the party may file the motion or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict.    (Ga. L. 1965, p. 18, § 2; Ga. L. 1966, p. 493, § 1.)   Cross references.   - Motions for judgment notwithstanding the verdict and motions for new trial after entry of judgment or, if verdict not returned, after discharge of jury, § 9-11-50.   Filings in clerk's office, Rules of the Supreme Court of the State of Georgia, Rule 1.   Filing of papers, Rules of the Court of Appeals of the State of Georgia, Rule 5.   Preparation and filing of motions, Rules of the Court of Appeals of the State of Georgia, Rule 32.   Law reviews.   - For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For note discussing the reluctance of Georgia courts to grant appeals when overruled motion for new trial not enumerated as error in light of Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968), see 5 Ga. St. B.J. 269 (1968).   JUDICIAL DECISIONS    Appellants may elect to attack judgment in court below or to appeal directly. Dempsey v. Ellington, 125 Ga. App. 707, 188 S.E.2d 908 (1972).    Construction with O.C.G.A. § 9-11-50. - While the failure to move for a directed verdict barred a party from contending on appeal that the party was entitled to a judgment as a matter of law because of insufficient evidence, such did not bar that party from claiming their entitlement to a new trial on that ground, as fairness dictated that a party who has failed to move for a directed verdict at trial should not be able to obtain a judgment as a matter of law on appeal based on the contention the evidence was insufficient to support the verdict. Aldworth Co. v. England, 281 Ga. 197, 637 S.E.2d 198 (2006).   Subsection (a) gives litigant option to appeal directly, or first move for new trial.    - Subsection (a) clearly gives a litigant the right to appeal directly from an adverse verdict and judgment, or to defer appeal until a ruling is obtained on a motion for new trial. Brissette v. Munday, 115 Ga. App. 131, 153 S.E.2d 606 (1967).    Effect of filing of motion for new trial is to toll time for filing appeal from judgment on the verdict until the motion for new trial is overruled (unless the appellant should elect to abandon or dismiss the motion). Allen v. Rome Kraft Co., 114 Ga. App. 717, 152 S.E.2d 618 (1966); A & D Barrel & Drum Co. v. Fuqua, 132 Ga. App. 827, 209 S.E.2d 272 (1974).   Appeal from ruling on motion for new trial or from original judgment rendered.    - Since filing of motion for new trial is not condition precedent to appeal, an appeal may be made directly from any other appealable judgment, ruling, or order, but this does not negate appealability of ruling on motion for new trial when that procedure is utilized and it is desired to appeal from such ruling. The result is practically identical moreover, since the same grounds of appeal may be urged whichever judgment is appealed from and the appellants are not limited to grounds of motion for new trial in any appeal. Munday v. Brissette, 113 Ga. App. 147, 148 S.E.2d 55, rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).    Appellant not limited on appeal to issues presented in motion for new trial. Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 226 S.E.2d 791 (1976).    Appellant may argue all properly raised enumerations of error as well as matters contained in new trial motion. Hulsey v. Sears, Roebuck & Co., 138 Ga. App. 523, 226 S.E.2d 791 (1976).    Overruling of the defendant's motion for directed verdict may be enumerated as error by the defendant in a criminal case. Merino v. State, 230 Ga. 604, 198 S.E.2d 311 (1973).    Appellant need not enumerate as error the judgment overruling motion for new trial in order to confer jurisdiction of appeal upon the appellate court. State Hwy. Dep't v. Hilliard, 114 Ga. App. 328, 151 S.E.2d 491 (1966).   Adverse ruling on motion for judgment n.o.v. must be enumerated as error on appeal.    - Losing party may file motion for judgment n.o.v., or the party may appeal directly from judgment and enumerate as error the denial of a directed verdict. If the losing party files a motion for judgment n.o.v. and obtains a ruling on it judgment, the losing party has used that device as a means of reviewing the motion for directed verdict at trial level. If ruling is adverse the losing party must enumerate it as error on appeal or become bound by the ruling and judgment unexcepted to, which becomes the law of the case. Wood v. Mobley, 114 Ga. App. 170, 150 S.E.2d 358 (1966).   To set aside judgment predicated upon jury verdict requires direct appeal or new trial.    - When judgment is predicated upon jury verdict, the court has no plenary right to vacate, revise, or otherwise treat. To set aside that kind of judgment the verdict must also be set aside, except for defects appearing on the face of the record; remedy is by motion for new trial, or by direct appeal. Thompson v. Maslia, 127 Ga. App. 758, 195 S.E.2d 238 (1972).   Procedure for excepting to judgment awarding child custody.    - When losing party in child custody case desires to except to judgment awarding custody of child, proper procedure is by direct exceptions to decree, and not by motion for new trial. Alf v. Alf, 226 Ga. 880, 178 S.E.2d 187 (1970).    Appellate court may review sufficiency of evidence although not considered in motion for new trial. Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975).   Failure to renew motion for directed verdict.    - Challenges to the sufficiency of the evidence may be considered on appeal pursuant to O.C.G.A. § 5-6-36(a); even though an owner and a driver failed to renew their motions for a directed verdict on the issues of agency and lost earnings at the close of all evidence, the appellate court considered the merits of the evidentiary challenges. Pep Boys-Manny, Moe & Jack, Inc. v. Yahyapour, 279 Ga. App. 674, 632 S.E.2d 385 (2006).   Excessiveness of verdict.    - Appellate court declined to set aside the amount of the verdict for pain and suffering and wrongful death when a juvenile in a child care institution was accidentally electrocuted because $1,000,000 for pain and suffering and $2,000,000 for wrongful death were not excessive as a matter of law. Ga. Dep't of Human Res. v. Johnson, 264 Ga. App. 730, 592 S.E.2d 124 (2003).   Sufficiency of evidence, not its weight, is reviewed.    - Weight of the evidence and the credibility of witnesses are questions for the triers of fact. The Court of Appeals passes on the sufficiency of the evidence, not the weight of the evidence, which is considered by the jury. Mosley v. State, 157 Ga. App. 578, 278 S.E.2d 154 (1981).    Role of an appellate court is not to pass on the weight of the evidence but the sufficiency. If there is any evidence to support the verdict of the trial court the appellate court cannot disturb the verdict. Gay v. City of Rome, 157 Ga. App. 368, 277 S.E.2d 741 (1981).    While the trier of fact can and must weigh and analyze the evidence, an appellate court, in reviewing on the general grounds, is restricted to determining if there is sufficient evidence to support the judgment of conviction. After conviction, the evidence in the record is reviewed on appeal in the light most favorable to the state. Gibbs v. State, 157 Ga. App. 530, 278 S.E.2d 111 (1981).   Ineffective assistance of counsel based on failure to comply with statute.    - Because a motion for new trial did not need to be filed as a condition precedent to appeal or consideration of any judgment, ruling, or order in any case, the failure to file a motion for new trial could not serve as the basis for the appellant's ineffective assistance of counsel claim; thus, even assuming the appellant sufficiently alleged that purported error on the part of plea counsel was the cause of the appellant's failure to file a timely appeal, the appellant failed to demonstrate ineffective assistance of counsel on that ground. Henderson v. State, 300 Ga. 526, 796 S.E.2d 681 (2017), appeal dismissed, 303 Ga. 241, 811 S.E.2d 388, 2018 Ga. LEXIS 145 (2018).    Cited in Undercofler v. White, 113 Ga. App. 853, 149 S.E.2d 845 (1966); St. Paul Fire & Marine Ins. Co. v. Postell, 113 Ga. App. 862, 149 S.E.2d 864 (1966); Crider v. State, 114 Ga. App. 523, 151 S.E.2d 792 (1966); Daniel v. Daniel, 222 Ga. 861, 152 S.E.2d 873 (1967); Sutton v. State, 223 Ga. 313, 154 S.E.2d 578 (1967); Kirkman v. Miller, 116 Ga. App. 78, 156 S.E.2d 558 (1967); Foskey v. State, 116 Ga. App. 334, 157 S.E.2d 314 (1967); Jackson v. Mayor of Carrollton, 116 Ga. App. 323, 157 S.E.2d 500 (1967); Hill v. General Rediscount Corp., 116 Ga. App. 459, 157 S.E.2d 888 (1967); Gardner v. State, 117 Ga. App. 262, 160 S.E.2d 271 (1968); Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968); Crowley v. State, 118 Ga. App. 7, 162 S.E.2d 299 (1968); Tiller v. State, 224 Ga. 645, 164 S.E.2d 137 (1968); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480, 164 S.E.2d 318 (1968); Lansford v. Gatliff, 119 Ga. App. 145, 166 S.E.2d 639 (1969); Taylor v. Buckhead Glass Co., 120 Ga. App. 663, 171 S.E.2d 779 (1969); Walker v. Camp, 121 Ga. App. 765, 175 S.E.2d 53 (1970); Hichman v. Frazier, 128 Ga. App. 552, 197 S.E.2d 441 (1973); Buffington v. McClelland, 130 Ga. App. 460, 203 S.E.2d 575 (1973); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Guardian of Ga., Inc. v. Granite Equip. Leasing Corp., 130 Ga. App. 514, 203 S.E.2d 733 (1974); Glover v. Southern Bell Tel. & Tel. Co., 132 Ga. App. 74, 207 S.E.2d 584 (1974); Wooten v. State, 135 Ga. App. 97, 217 S.E.2d 350 (1975); Schwartz v. C & S Mtg. Co., 142 Ga. App. 682, 236 S.E.2d 856 (1977); Adderholt v. Adderholt, 240 Ga. 626, 242 S.E.2d 11 (1978); Grizzle v. Federal Land Bank, 145 Ga. App. 385, 244 S.E.2d 362 (1978); Jackson v. State, 154 Ga. App. 367, 268 S.E.2d 418 (1980); Bennett v. Caton, 154 Ga. App. 515, 268 S.E.2d 786 (1980); DOT v. Claussen Paving Co., 246 Ga. 807, 273 S.E.2d 161 (1980); Battle v. Yancey Bros. Co., 157 Ga. App. 277, 277 S.E.2d 280 (1981); Fuller v. State, 159 Ga. App. 512, 284 S.E.2d 29 (1981); City of Atlanta v. West, 160 Ga. App. 609, 287 S.E.2d 558 (1981); Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83, 295 S.E.2d 841 (1982); Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 295 S.E.2d 843 (1982); Hensel Phelps Constr. Co. v. Johnson, 164 Ga. App. 404, 298 S.E.2d 261 (1982); Stewart v. State, 165 Ga. App. 428, 300 S.E.2d 331 (1983); California Fed. Sav. & Loan Ass'n v. Hudson, 185 Ga. App. 384, 364 S.E.2d 582 (1987); Balkcom v. State, 227 Ga. App. 327, 489 S.E.2d 129 (1997); GLW Int'l Corp. v. Yao, 243 Ga. App. 38, 532 S.E.2d 151 (2000); ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 649 S.E.2d 740 (2007); Griffith v. State, 286 Ga. App. 859, 650 S.E.2d 413 (2007); Bldg. Materials Wholesale, Inc. v. Triad Drywall, LLC, 287 Ga. App. 772, 653 S.E.2d 115 (2007); Gill Plumbing Co. v. Jimenez, 310 Ga. App. 863, 714 S.E.2d 342 (2011); Gospel Tabernacle Deliverance Church, Inc. v. From the Heart Church Ministries, Inc., 312 Ga. App. 355, 718 S.E.2d 575 (2011).   RESEARCH REFERENCES   Am. Jur. 2d.   - 5 Am. Jur. 2d, Appellate Review, § 489 et seq. 58 Am. Jur. 2d, New Trial, § 340 et seq.   C.J.S.   - 4 C.J.S., Appeal and Error, §§ 191, 195. 5 C.J.S., Appeal and Error, § 865.   ALR.    - Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725.    Abandonment of appeal or right of appeal by commencement, or prosecution to judgment, of another action, 115 A.L.R. 121.   Appealability of order overruling motion for directed verdict, or for judgment, or the like, where the jury has disagreed, 40 A.L.R.2d 1284.   Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.   Inattention of juror from sleepiness or other cause as ground for reversal or new trial, 88 A.L.R.2d 1275, 59 A.L.R.5th 1.   Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.