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Action on account, etc. Fulton State Court. Before Judge Moran.
B & L Service Company, Inc. (B & L) sued Dr. Ira Tedoff on an open account for the installation of humidifying equipment. Tedoff counterclaimed for damages based on B & L's alleged fraudulent misrepresentations. On the day of the trial, B & L failed to appear and the trial court dismissed its claim. Tedoff was allowed to present his counterclaim to the jury and was awarded a judgment. Afterwards, on B & L's petition setting forth an alleged oral agreement between counsel for a continuance, the trial court ordered she judgment against B & L set aside, reinstated B & L's claim and granted a new trial.
Tedoff contends that the trial court erred in granting B & L's extraordinary motion for new trial. The first grant of a new trial will not be disturbed by this court unless the appellant shows that the trial court judge abused his discretion in granting it or that the verdict was demanded under law and evidence. OCGA 5-5-50 (Code Ann. 6-1608); Winn Dixie Stores v. Whaley, 127 Ga. App. 381, 382 (1) (193 SE2d 279) (1972). Even though this is an out of term motion for new trial, a trial court in its discretion can grant an extraordinary motion for new trial "where the circumstances warrant such relief." Spyropoulos v. Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979).
Although both briefs discuss the alleged oral agreement between counsel for the parties, when the trial court made its decision to grant B & L's motion it did so reciting only that it was exercising its discretion in the granting of the new trial. There is no transcript and thus, there is nothing in the record to support appellant's contention that the trial court abused its discretion or that the circumstances did not warrant the relief.
Tedoff's other enumerations of error are without merit.
Stanley M. Lefco, for appellant.
DECIDED JULY 13, 1983.
Thursday May 21 20:22 EDT

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