(Laws 1805, Cobb's 1851 Digest, p. 183; Laws 1823, Cobb's 1851 Digest, p. 497; Code 1863, § 3551; Code 1868, § 3574; Code 1873, § 3630; Code 1882, § 3630; Civil Code 1895, § 4472; Civil Code 1910, § 5017; Code 1933, § 6-601; Ga. L. 1988, p. 253, § 1; Ga. L. 1998, p. 552, § 1; Ga. L. 2001, p. 1223, § 1.)
Editor's notes.- Ga. L. 1998, p. 552, § 2, not codified by the General Assembly, provides that the 1998 amendment to this Code section is applicable to appeals filed on or after July 1, 1998.
Cross references.- Juries, T. 15, C. 12.
Law reviews.- For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).
JUDICIAL DECISIONS
Language of section is obligatory.
- Language of section is obligatory, especially where it concerns and affects public interest as well as interest of appellant and failure to comply, unless excusable, will result in dismissal. Huber v. State, 140 Ga. App. 148, 230 S.E.2d 105 (1976).
No waiver of right to trial by jury.
- Because: (1) by repealing former provisions of O.C.G.A. § 5-3-30, the Georgia legislature intended that appeals from the probate court to the superior court would continue without special limitations on the right to a jury trial; and (2) de novo appeals to the superior court from the probate court were to be tried by jury unless the right to a jury trial was waived, given that a widow specifically requested a jury trial, and hence did not waive the right, the trial court erred in denying the widow's request. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).
Constitutional right to jury trial in dispossessory actions.
- Where the appellants had sought a jury trial in a local magistrate court on the issue of possession in a landlord-tenant dispute, the appellee denied the appellants' request, the appellants filed a writ of prohibition against the appellee in the superior court, and the superior court denied the appellants' writ and issued a certificate of immediate review to the Supreme Court of Georgia, the magistrate court did not err in denying the appellants a jury trial, since the right to jury trial on appeal is expressly given in this Code section, and the appellants are not being denied a jury trial, but instead, only endure a procedural delay in the magistrate court before receiving a jury trial on appeal to the state or superior court. Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989).
Control of calendars and trial of cases are procedures in hands of court, not counsel. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).
No greater duty is placed upon appellant than upon appellee to bring case to trial. Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).
If court does not reach case during first term after entry, neither party is penalized.
- It being express command of this section that appeal cases be tried by jury at first term after appeal has been entered, it would appear duty of clerk to place same upon trial calendar for first term after docketing. If it cannot be reached at that term, or should court otherwise defer the matter, neither party should be penalized because it has not been reached. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978); Lackey v. DeKalb County, 156 Ga. App. 309, 274 S.E.2d 705 (1980).
Jury is required on trial of appeals from county court to superior court. Johnson v. Ford, 92 Ga. 751, 19 S.E. 712 (1894).
Jury is to be taken from panels of traverse jurors and not from grand juries. Cronan v. Roberts & Co., 65 Ga. 678 (1880).
Jury trial in guardianship proceedings.
- The legitimate public interest in an incapacitated adult's welfare, coupled with statutory scheme requiring a jury trial in appeals to the superior court from the probate court, compelled the conclusion that a jury trial was required in guardianship proceeding. In re Boles, 172 Ga. App. 111, 322 S.E.2d 319 (1984).
Judge may direct verdict for defendant where demanded by evidence. Callaway & Truitt v. Southern Ry., 126 Ga. 192, 55 S.E. 22 (1906).
Letting jury know what judgment was rendered below will not render its verdict void, although it is not a proper practice. Humphrey v. Johnson, 143 Ga. 703, 85 S.E. 830 (1915).
Cited in Montgomery v. Fouche, 125 Ga. 43, 53 S.E. 767 (1906); Culver v. Pierce, 148 Ga. 300, 96 S.E. 497 (1918); Goolsby v. Board of Drainage Comm'rs, 156 Ga. 213, 119 S.E. 644 (1923); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); United States v. Raines, 189 F. Supp. 121 (M.D. Ga. 1960); Gifford v. Courson, 224 Ga. 840, 165 S.E.2d 133 (1968); Bell v. Cronic, 248 Ga. 457, 283 S.E.2d 476 (1981); Anderson v. City of Alpharetta, 187 Ga. App. 148, 369 S.E.2d 521 (1988); Walton v. State, 261 Ga. 392, 405 S.E.2d 29 (1991); Davis v. Hawkins, 238 Ga. App. 749, 521 S.E.2d 10 (1999).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Justices of the Peace, § 448 et seq.