132 Ga. 430 | Ga. | 1909
A motion for a new trial, together with a brief of the evidence, must be filed during the term of the court when the verdict was found, unless further time for filing the brief should be allowed by order. .But this may be done. ■ The order granted ón December 3, 1907, may be construed as composed of two parts: first, a rule nisi to show cause why the new trial should not be granted; and second, an order allowing time to prepare and present for approval a brief of the evidence. As to the latter feature it was provided that the plaintiff was allowed until the hearing, whenever it might be, to prepare and present for approval a brief of the evidence in said case. One ground of the motion to dismiss the motion for a new trial was based on the use of the word “plaintiff” in this part of the order, instead of the word “"movant,” and it was urged that there did not appear in the order any authority or right given to the defendant to prepare and present for approval a brief of the evidence, which was contrary to law. On the face of the order it is apparent that the presiding' judge intended to set the case for a hearing and to allow time for the preparation of the brief of evidence. It may reasonably be inferred that he intended to allow such time to the party who would need it and upon whom rested the duty of preparing the brief, and that the word “plaintiff” as there used was inadvertently used instead of the word “movant.” It is hardly probable that he intended to grant time to a party on whom there was no obligation to file a brief of evidence. It is true that it is stated that the defendant prepared the order, but the judge .adopted it and signed it; and it would be an unreasonable construction to hold that the inadvertent use of the word “plaintiff” for “movant”
Taking up, then, that part of the order granted by the judge which constituted the rule nisi proper, or order to show cause why a new trial should not be granted, was the effect of it to authorize a dismissal of the motion on February 10, 1908? It was contended that this order, which was granted on December 3, 1907, required the plaintiff in the action (respondent in the motion) to show cause why a new trial should not be granted, setting the hearing for the first Monday in February, 1907, which was an impossible date, being already long past, and that therefore the motion should be dismissed. There are two. ways in which this rule nisi can be viewed, — one that the date set for the hearing, the “first Monday in February, 1907,” was a mere inadvertence, when 1908 was intended. This was no doubt the fact. The order was granted on December 3, 1907. It is a matter of common knowledge how difficult it is at the close of one year and the beginning of the next to at once change the figure of the calendar1 so as to
Judgment reversed.