7 Ga. App. 83 | Ga. Ct. App. | 1909
The lower court dismissed the motion for new trial, upon the ground that the solicitor had not been duly served with a copy of the motion, and had not waived service. It appears that the motion was filed on July 16,-1909, during the term at which the ease had been tried, and the court passed an order that the motion be heard on August 9, 1909. The order, among other things, provided that the movant should have until the final hearing in which to perfect a brief of the evidence, and that the solicitor be served with a copy of the motion and order. The hearing of the motion was several times continued by general orders of continuance which made no further reference to the filing of the brief of evidence or to service on the opposite party. The first order continuing the hearing, after stating the case, merely states that “the above case having been set for hearing this day, the same is hereby continued until August 30th, at my office in Eastman, Georgia. Charles W. Griffin. J. C. C. E.” On August 30 the hearing was continued until September 3, 1909, upon the ground that the stenographer had not filed a report of the evidence and charge of the court. Before the continuance of August 30, 1909, the movant’s counsel asked counsel for the State, who was present, if he would
Upon a review of the record, we think that the judge of the city court erred in dismissing the motion for a new trial. As was held in James v. John Flannery Co., 6 Ga. App. 811 (65 S. E. 153), the trial judge has plenary power, by proper order passed in term time, to extend the time of hearing of a motion set to be heard-in vacation, and to control the direction of all matters incidental or essential to the proper consideration of the motion for new trial. In the present case the court gave the movant the right to prepare and file a brief of the evidence at any time until the final hearing. Consequently, although the brief of the evidence is an essential part of a motion for new trial, and a motion for new trial can not be perfected until the brief of evidence is approved by the court and filed, still the movant has until the hearing to present the brief of the evidence for approval and filing; and so far as service of the motion, directed by the court, was concerned, it only included service of the grounds of the original motion in its incomplete state, — that is to say, the service of the grounds of the original motion and the various orders passed by the court, providing for the completion and hearing of the motion. In view of the admission of the solicitor that on September 8, 1909, he was served with a copy of the original motion and order, the court could not properly dismiss the motion for want of service, unless a time had been specified within which the respondent should be served. If, in the order continuing the hearing, the court, in the exercise of the plenary powers to which we have above referred, had ordered that the respondent should be served within ten days, or twenty days, or by or before any date named in the order, and service had not been effected within that time, the court would have been authorized to dismiss the motion. In the present case, however, the only reqriirement upon this sub
Our -decision in this case is necessarily controlled by the ruling in. Johnson v. State, 4 Ga. App. 850 (62 S. E. 540), in which it was-held that where the original order, requiring service upon the respondent, did not fix a definite time within which he should be-served, and the respondent was in fact served before the hearing,, such service was a substantial compliance with the original order, and a sufficient legal service. Section 5475 of the Civil Code-merely prescribes that the opposite party in eveiy application for new trial should be served with a copy of the rule nisi. Eo limit of