Leventhal v. Baumgartner

73 S.E.2d 194, 209 Ga. 404, 1952 Ga. LEXIS 523

Opinion

Atkinson, Presiding Justice.

Where a new trial has been granted, the case stands ready for trial as if there had been no trial. The effect of the grant of a new trial by this court is to require the case to be heard de novo unless specific direction be given in regard thereto. Code, i 70-401; Anderson v. Clark, 70 Ga. 362 (2). And notwithstanding the plaintiff in error, in the first trial, made a written request for a charge on the law of undue influence, yet, upon the second trial it was error for the trial judge to charge on that subject where there was no evidence to authorize a charge on undue influence.

Judgment reversed.

All the Justices concur, except Duckworth, C.J., and Head, J., who dissent.