To the plaintiff's petition in the present case the defendant filed an answer and cross-action, asking for affirmative relief, and the court, after calling the case and neither the plaintiff nor its counsel appeared, directed that the case proceed, and the jury returned a verdict in favor of the defendant on his cross-action. The plaintiff within the term filed a motion for new trial on the usual general grounds, and by an order of the court the right was granted it to file a brief of the evidence and to amend its motion at any time until the final hearing of the motion. The plaintiff thereafter amended its motion for new trial and set up that it had a valid and meritorious defense to the defendant's cross-action, and that it had not had its day in court, and prayed that the verdict be set aside and a new trial be granted it. When the motion for new trial as amended finally came on for a hearing. counsel for the defendant made a written motion to dismiss the plaintiff's motion for new trial on the ground that no brief of evidence had been filed by it. The court granted a new trial to the *Page 856 plaintiff, reciting in its order that "after carefully considering the grounds set forth in said motion a new trial is hereby granted in said case." The motion to dismiss the motion for new trial on the ground that no brief of the evidence was filed with the motion appears of record in the case, and there is a recital in the bill of exceptions that this motion to dismiss was made before the judge granted the new trial. There is no contention on the part of the defendant in error that any brief of the evidence was ever filed with the motion for new trial, but it contends that the amendment to the motion may properly be considered by the trial court as being separate from the original motion and as a motion to set aside the judgment.
There is no statutory provision for setting aside a verdict other than by a motion for new trial or its equivalent, except where the legality of the verdict is directly challenged as provided by Code § 6-804 in a case where "the judgment, decree, or verdict necessarily has been controlled by one or more rulings, orders, decisions, or charges of the court." Lovelace v. Lovelace, 179 Ga. 822, 827 (177 S.E. 685). "A motion to set aside a verdict, based on matters not appearing on the face of the record, is not an available remedy to avoid the verdict, unless the motion is of such form and content as to be in substance a motion for a new trial, and complies with the rules governing such a motion." Lucas v. Lucas, 179 Ga. 821 (177 S.E. 684). "A brief of evidence is essential to the validity of any motion for a new trial, and this is true even though the only ground of the motion insisted upon does not require a consideration of any of the evidence introduced on the trial."Chandler v. Chandler, 191 Ga. 172 (1) (11 S.E.2d 666). A motion to set aside a verdict is distinguishable from a motion to set aside a judgment. Lucas v. Lucas, supra. A motion to set aside a judgment may be based on facts not appearing on the face of the record.
Under rule 18 of this court (Code § 24-3618), "The brief of the defendant in error shall be subdivided in the following manner: (1) Part one shall point out any material inaccuracy or incompleteness of statement in the brief of counsel for the plaintiff in error, and shall contain such additional statement as may be deemed necessary, and shall cite such additional parts of the record as are deemed material thereto. If the defendant in error should *Page 857 fail to do so, he will be held to have consented to a decision of the case on the statement made by the plaintiff in error. Except as controverted, the statement of facts by the plaintiff in error may be accepted by this court as being prima facie true;" and from the apparent admission by the defendant in error that no brief of evidence was filed with the purported motion for new trial, it must be taken as true that no such brief of evidence was filed, and there being no valid motion for new trial in the absence of a brief of the evidence, I am of the opinion that the trial court erred in refusing to sustain the defendant's motion to dismiss on the said ground and in granting the plaintiff a new trial.
With reference to the motion the plaintiff in error in his brief in this court stated that "the original motion for a new trial and the amended motion for a new trial are the only papers or records filed by the plaintiff," and this was admitted by counsel for the defendant in error in his brief. This admission that no brief of evidence was filed in the trial court should be taken as tantamount to an admission that the record in this court should be considered as if it showed that no brief of evidence was filed in the trial court. It is not even contended by the defendant in error that any brief of evidence was ever filed with the motion for new trial; but it is contended that the amendment to its original motion for new trial could properly be considered by the trial court as a motion to set aside the judgment and that upon this the trial court might in its discretion grant a first new trial. This contention is without merit and can not legally be maintained. This document was just an amendment to the motion for new trial and did not pray that the court set aside the judgment, but asked that the verdict be set aside, a determination of which necessarily involves a consideration of the evidence introduced upon the trial, and to which a brief of the evidence is essential.
As stated, no brief of the evidence is contained in the record in this court, and it is not even contended by the defendant in error that any brief of evidence was ever filed with the motion for new trial, but it undertakes to justify and sustain the granting of a new trial on the erroneous theory that the amendment to the motion for new trial could be considered by the trial court as a motion to set aside the judgment. In these circumstances I think *Page 858 that the trial court erroneously granted a new trial, and I can not concur in the judgment of affirmance.