39 Ga. App. 784 | Ga. Ct. App. | 1929
Lead Opinion
The special grounds of the motion for a new trial are not unqualifiedly approved by the trial judge, and consequently will not be considered. The State made out a case, and the defendant introduced no evidence and made no statement. The court did not err in overruling the motion for a new trial.
Judgment affirmed.
Rehearing
ON MOTION FOB BEHEAEING.
A motion for a rehearing was made, in which it is stated that “it appears from the record, which must have been overlooked by the court, that .the amended motion was approved unqualifiedly, but a marginal note [was] made by the trial judge in substantiation and explanation of the approval.” This court did not overlook what appears in the record. The record shows no approval whatever of the special grounds of the motion for a new trial. Eollowing these grounds the following appears: “The above and foregoing am'ended motion is hereby allowed, and the same ordered filed along with the record in said case. See marginal note No. 1.” The marginal note shows no approval of the special grounds. The 2d headnote of the decision in Jackson v. State, 116 Ga. 834 (43 S. E. 255), is as follows: “Though the amendment to the motion for new trial was allowed and ordered filed, it does not appear that the trial judge approved it or certified its grounds as true. The assignments of error therein will, therefore, not be considered.” In the opinion in that case Chief Justice Simmons said: “An approval of the amendment does not follow from its having been allowed and ordered filed. Such amendments may be, and frequently are, allowed and ordered filed subject to subsequent approval. Unless the grounds are approved or certified to be true, we have no jurisdiction to consider them,” citing Gamble v. State, 113 Ga. 701 (39 S. E. 301) ; Taylor v. Brown, 114 Ga. 299 (40 S. E. 281); Dunn v. State, 116 Ga. 515 (42 S. E. 772). In Tribble v. Tribble, 166 Ga. 850, 855, Chief Justice Russell said: “Nothing is better settled than that an assignment of error which is not approved by the trial court can not be considered in a court of review.” See Wright v. State, 9 Ga. App. 235 (70 S. E. 968) ; Pollard v. State, 125 Ga. 270 (54 S. E. 171).
Motion to rehear denied.