Summary
vacating denial of motion for new trial and remanding for hearing on motion, where trial court failed to hold hearing
Summary of this case from In re Interest of M.I.Opinion
A03A1625.
September 5, 2003
Motion for new trial. Bibb Civil Court. Before Judge Shurling.
Burnette Driggers, G. Samuel Burnette, Benjamin D. Driggers, for appellants.
Jones, Cork Miller, Christopher B. Jarrard, for appellee.
Because appellants were denied their right to a hearing on their motion for new trial, we vacate the judgment appealed and remand for further proceedings.
Ricky Heath Plumbing Company, Inc. (Heath) sued appellants, P. S. Sidhu and others (referred to collectively as Sidhu), in the Magistrate Court of Bibb County. On motion by Sidhu, Georgia Macon Contractors and Equipment, Inc. (Georgia Macon) was added as a third party defendant. On further motion by Sidhu, the case was transferred to the Civil Court of Bibb County. There, Sidhu filed a counterclaim against Heath and a cross claim against Georgia Macon, and Georgia Macon filed a counterclaim against Sidhu.
The jury returned a verdict in favor of Georgia Macon and Heath against Sidhu; judgments were entered awarding $25,000 in damages to Georgia Macon and $23,194.71 in damages to Heath. Sidhu filed a motion for new trial, asserting that during the trial the court had committed legal errors and abused its discretion in various rulings and that the verdict was against the weight of the evidence. Although Sidhu requested a hearing on the motion, the trial court denied the motion on the day it was filed without holding a hearing.
Sidhu initially appealed both judgments but later withdrew its appeal against Heath. In its appeal against Georgia Macon, Sidhu has enumerated seven errors. Sidhu first contends that the trial court erred in denying its request for a hearing on the motion for new trial. We agree. In Gantt v. Sweatman, this court held that, absent a waiver, a movant for new trial is entitled to a hearing on the motion in the trial court before a ruling is made thereon; and that if the movant's right to such a hearing has been denied, we must return the case to the trial court for a hearing and disposition of the motion before the merits of the remaining claims of error are addressed. Therefore, we vacate the judgment and remand the case for a hearing on Sidhu's motion for new trial. If the trial court denies the motion, Sidhu may then file another appeal.
162 Ga. App. 738 ( 293 S.E.2d 359) (1982).
Id. at 738-739(1).
Id. at 739(2).
Judgment vacated and case remanded. Blackburn, P.J., and Ellington, J., concur.
DECIDED SEPTEMBER 5, 2003.