150 Ga. 786 | Ga. | 1920
1. “ The order of the judge overruling the motion for a new trial after having dismissed the same was a mere nullity.” Hopkins v. Jackson, 147 Ga. 821 (2), 823 (95 S. E. 675).
2. According to the principle ruled in Pendergrass v. Duke, 140 Ga. 550, 552 (79 S. E. 129), the judgment dismissing the motion for a new trial was not erroneous.
(а) The facts shown in the record do not amount to a waiver, on thp part of the solicitor-general, of the filing of a brief of evidence as required by law, the written motion to dismiss having been presented during the hearing on the merits of the motion for a new trial. Under the provisions of the act of the General Assembly of 1911 (p. 150, § 3) such a waiver results only where the judge has finally passed on the merits of a motion for a new trial.
(б) The plaintiff in error seeks to differentiate the present case from Pendergrass v. Duke, supra, on the ground of the waiver signed by the solicitor-general. In the Pendergrass case, as shown by the original record of file in this court, the acknowledgment of service was in the following words: “ Due and legal service of the within motion and order acknowledged; time, copy, and all other and ' further service waived.” Comparing this acknowledgment with the facts of the present case, it is obvious that there is no substantial difference between the waivers in the two cases. In each case there was a failure to comply with the mandatory provisions of the code, requiring the movant to file within a specified time the brief of the evidence; and there was no valid order extending the time within which the same could be done. Garraux v. Ross, 150 Ga. 645 (104 S. E. 907), and authorities cited. The judgment dismissing the motion for a new trial is affirmed.
Judgment affirmed.