114 Ga. 998 | Ga. | 1902
Lead Opinion
It appears from tbe record that this ease was tried at the April term, 1901, of Pickens superior court. The jury having returned a verdict for the plaintiff, the defendant company made, during the term, a motion for a new trial. As the brief of evidence could not be made out before the adjournment of the term, an order was taken setting down the hearing of the motion for new trial on May 20, 1901, at Ellijay in Gilmer county. On that day counsel for the movant appeared, bur the leading counsel for the respondent was absent on account of sickness. The judge refused to hear the case on that day, but announced that he would take it up during the week. On the following day the respondent’s leading counsel appeared and moved to dismiss the motion for new trial, because the brief of evidence had not been perfected. The judge declined to dismiss the motion, but passed an order, on May 21, setting the motion down for a hearing at Blue Ridge in Eannin county, on May 27, at 10 o’clock a. m. On that day, at 11 o’clock a. m., counsel for the respondent, in the absence of counsel for the movant, moved to dismiss the motion, on the ground that the brief of evidence had not been filed. This motion was granted by the judge. Thereafter on the same day movant’s counsel moved to reinstate the motion, assigning various reasons therefor, which, under the view we take of the case, it is unnecessary to mention. The judge refused to reinstate the motion, and movant’s counsel filed a bill of exceptions complaining of the dismissal of the motion and of the refusal to reinstate it. The exceptions to the dismissal of the motion are, in substance, that the court had no
The conclusion to be drawn from these cases, and others wljich might be cited, is that when a written order is taken in term to hear a motion for new' trial upon a named day in vacation, the motion must be heard or dismissed, or continued by written order to some other particular day; or else the term, as to that case, is lost, and the motion by operation of law goes over to the next regular term of the court in which it was made, unless it be in the meantime disposed of under the provisions of the Civil Code, §§4323, 4324. See generally, on this subject, Walker v. Banks, 65 Ga. 20; Dickinson v. Mann, 74 Ga. 217; Tison v. Myrick, 60 Ga. 123; Middlebrooks v. Middlebrooks, 57 Ga. 193; Johnston v. Simmons, supra.
Judgment reversed.
Dissenting Opinion
dissenting. I dissent altogether from the conclusions reached by a majority of the court in this case. I am aware that frequently it has been said, when a motion for new trial is set to be heard in vacation, the ,effect of such order is, as to that motion, that the term of the court in which the motion is pending is continued. But the ruling in this case is to the effect that a term of Pickens superior court could be held in Gilmer county; for the majority of the court have concluded that as it takes a written order to adjourn a term of the superior court, then, Pickens court being in session so far as this motion for a new trial was concerned, the postponement of the hearing by the judge was illegal unless made by a written order. I know of no law which now requires or ever has required a postponement of the hearing of a motion for a new trial to be