Melton v. Elbert Sales Co.

351 S.E.2d 261, 181 Ga. App. 61, 1986 Ga. App. LEXIS 2334

• Court: Court of Appeals of Georgia
• Decided: November 25, 1986
• Docket: 73558, 73559
• Status: Published

Opinion

Deen, Presiding Judge.

Appellee, Elbert Sales Company has filed a motion to dismiss this appeal as premature or, in the alternative, to remand this case to the court below for a ruling on its motion for a new trial in accordance with the provisions of OCGA § 9-11-50. Held:

The evidence shows that a jury verdict was rendered in this land-line dispute in favor of appellant, Richard B. Melton. Appellee filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted appellee’s motion for a judgment notwithstanding the verdict and held that there were issues as to damages which required resolution by a jury. The court made no ruling on the motion for a new trial.

Decided November 25, 1986. John S. Jenkins, for appellant. Truett Smith, for appellee.

CPA § 50 (c) (1), presently codified as OCGA § 9-11-50 (c) (1) provides: “If the motion for judgment notwithstanding the verdict provided for in subsection (b) of this Code section is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.” If the trial court does not rule on the motion for new trial, the case must be remanded with direction that such a ruling be made. National Bank of Ga. v. Refrigerated Transport, 143 Ga. App. 661 (239 SE2d 551) (1977); McConnell v. Brenau College, 134 Ga. App. 470 (215 SE2d 25) (1975).

As this case must be remanded with direction it is not necessary to rule on the remaining portion of appellee’s motion or to consider appellant’s enumerations of error.

Case remanded with direction.

Benham and Beasley, JJ., concur.