95 Ga. 410 | Ga. | 1895
Under the facts above set forth (the recital of other facts deemed immaterial being omitted), it was, in view of the provisions of the act of November 12th, 1889 (Acts of 1889, p. 83), error to dismiss the motion for a new trial on the grounds stated. In a court to which that act is applicable, the filing of a motion for a new trial together with a brief of the evidence within the time prescribed, is sufficient to make the motion, for the purpose of keeping it alive till the final hearing, a valid and legal one. The approval of the brief of evidence' is not indispensable to this purpose, and may be obtained after -the time for filing has expired. King v. Sears, 91 Ga. 577. In such case, however, the movant must, of course, take the chances that the judge may, from want of memory or from other causes, be unable to approve the brief at all. See, in this connection, Watson v. Long et al., 94 Ga. 255, and Hinson v. Guckenheimer (post), decided October 22d, 1894.
In W. & A. R. R. Co. v. Johnson, 59 Ga. 626, it was held that where a party, instead of pursuing the course prescribed by law in relation to new trials, entered into a consent order to file an approved brief of the evidence
It was insisted in the case now under consideration, that the movant had bound himself by a consent order to have his brief of evidence approved on or before the 24th of April, 1893, and as he did not do so by that day, his motion for a new trial ought to have been dismissed. The two cases last cited were relied on in support of this contention. It will be observed that in the first of these cases, the brief of evidence was not even filed within the time limited; and in the second, it was not held that the judge was bound to dismiss the motion for a new trial, but simply that he was justified in doing so under the circumstances. Again, it must be remembered that both of these cases were decided before the passage of the above mentioned act of 1889, which, as already
If the trial judge had seen proper to refuse to approve the brief of evidence, and had dismissed the motion for a new trial for the want of such approval, this court would not have controlled his action in the premises. See the opinion of Simmons, C. J., in Anderson v. McLean & Co., 94 Ga. 798. In the case now under review, however, the movant was not allowed the opportunity of obtaining from the judge who was presiding at the final hearing of the motion his approval of the brief of evidence. It would seem that the counsel were about to submit the brief to the judge for approval, when the motion to dismiss was made; and the real ground of that motion was, that because the brief was not approved by the 24th day of April, 1893, and no further time had been then granted for that purpose, it was too late to ever after-wards obtain an approval of the same. This motion was sustained, and the judge therefore did not pass, nor attempt to pass, upon the question -whether the brief was a correct one or not, but, by summarily sustaining the motion to dismiss, cut the movant off from showing,
After reviewing and considering all the cases bearing upon the subject, we have reached the conclusion that that this action by the judge was erroneous. The motion for a new trial in this ease might have been dismissed for want of prosecution on the day last named, but as it was not so dismissed on that da.y, we think it went over to the next term of the court as a living motion, capable of subsisting from term to term; and at the final hearing, the judge ought first to have determined whether or not he could properly approve the brief of evidence accompanying the motion. If he found he could do so, the motion would have been in order for a hearing on its merits. If he found he could not approve the brief, and had then dismissed the motion for want of such approval, the question would have been materially different from that now presented.