
    71685.
    MAYS v. DANIELS et al.
    (347 SE2d 642)
   Beasley, Judge.

The Daniels filed this declaratory judgment action against Mays seeking resolution of a boundary line dispute; a jury returned a verdict for Mays. The trial court, determining that a photograph introduced by defendant had been wrongly admitted into evidence over objection, granted plaintiffs’ motion for judgment notwithstanding the verdict explaining: “Since the Court committed error in admitting the aerial photo and since there was no other evidence offered by the Defendant concerning the location of the boundary line, the Court further erred in overruling Plaintiffs’ Motion for Directed Verdict.” Defendant Mays appealed.

“ ‘The record as it exists at the close of the trial controls as to whether the verdict should be directed and as to whether the motion for judgment notwithstanding verdict should be granted . . . Under this rule the trial court may not on motion for judgment notwithstanding the verdict eliminate evidence on the ground that it was improperly received at the trial and then dispose of the case on the basis of the diminished record.’ The evidence complained of here . . . would require a motion for new trial to obtain a ruling that this evidence had been erroneously admitted.” Jones v. Grantham, 102 Ga. App. 436, 439 (2) (116 SE2d 668) (1960). See also SCM Corp. v. Thermo Structural Prods., 153 Ga. App. 372, 376-377 (3A) (265 SE2d 598) (1980). Thus, the trial court erred in granting plaintiffs’ motion for judgment notwithstanding the verdict. If there was error in the admission of evidence, the remedy is a new trial. Id.; OCGA § 5-5-22.

Decided June 24, 1986

Rehearing denied July 8, 1986

Robert Mays, pro se.

William E. Cannon, Jr., for appellees.

Judgment reversed.

Deen, P. J., concurs. Benham, J., concurs in the judgment only.  