3 Ga. App. 524 | Ga. Ct. App. | 1908
Mrs. M. E. Dixon filed suit against the Mutual Life Industrial Association of Georgia, to recover $1,000 alleged to be due her on a policy of insurance issued by the defendant ■on the life of her mother, Mrs. Winifred II. Mayo, Mrs. Dixon being the beneficiary named in the policy. At the December •quarterly term, 1906, of the city court of Dublin, a verdict in
It devolves upon the party who assigns error to show that error has been committed. After a careful examination and consideration of the present case it does, not appear to this court that the judgment of which complaint is made is erroneous. We can consider but one question; only one is presented for our consideration, — whether the trial judge abused his discretion, under the particular facts and circumstances presented by the record, in dismissing the plaintiff’s motion, for reasons stated. Considering the grounds of the motion, the brief of the evidence, and the charge of the court, we think that we should have sustained the judgment of the lower court if the extraordinary motion had been overruled, but a decision upon that subject is unnecessary,, because the court- dismissed the motion without passing upon its-intrinsic merits. The Civil Code, §5484, provides that all applications for new trials, except in extraordinary cases, must b&
We come, then, to consider the reasons shown why the motion was not made during the term. This properly leaves out of consideration the fact that the plaintiff’s counsel waited more than .six months, and until the third term of court succeeding that at which the case was tried, before filing the motion for a new trial, .and confines us to the limitations fixed for the judge of the lower court, — to the reason “why the motion was not made ■during the term.” If no good reason is shown why the motion was not made during the term, it would be immaterial how soon •or how long it might be after adjournment of the court. It is the reason why the litigant did not file Ms motion during the term, — a reason preventing him up to that time, — which is to be considered, and not something that may have happened afterwards, which entitles him to come within the exception provided by §5487 of the Civil Code. The reason referred to in the code is not one that creates a right, but one which presents the losing of a right, which otherwise would ensue upon
On the part of the plaintiff in error and her agent, no diligence-whatever was shown. While we doubt not that the counsel was sick and that the client had gone home, and that Judge Adams’' employment had ceased, and that Mr. Sturgis was in the jury-room, talking to his own client, and on his return was erroneously informed by the bystander, it would never do to hold that any of these circumstances, or all of tliem, constitute such a showing of' .good reason why the motion was not made before the adjourn-
We> do not think the discretion of the trial judge was abused, for the single reason assigned in his order; and we have therefore confined ourselves to the discussion of that proposition alone. Epon that point our decision is practically controlled by the decisions in Cobb v. State, 78 Ga. 802, 803 (3 S. E. 628), and Hudgins v. Veal, 98 Ga. 137 (26 S. E. 479). In the Cobb case Judge Hall, delivering the opinion of the court, says; “When this extraordinary motion [for a new trial] was called for hearing, the solicitor-general moved to dismiss it, and that motion was sustained by the court. We think the court did not err in dismissing the motion for a new trial. Such a case as this, where there was a mere failure of defendant and his counsel to look after it, and to take advantage of the circumstances as they arose, and to see that the motion for new trial was made in time, does not come within section 3731 of the code [of 1883], prescribing the conditions on which a new trial may be granted upon extraordinary grounds. One of the conditions upon which such motions are to be entertained is vigilance in discovering, and prompt action, after the grounds of the motion have been discovered, in bringing them to the notice of the court. Here the application seems to have been delayed for two terms of the court after the grounds upon which the motion was made were known to the
We have not considered the certiorari, nor the merits of the motion for a new trial, because, in our opinion, neither can have any bearing on the consideration of the question whether any cause which prevented the filing of 'such a motion before the adjournment of the court presented a good reason for allowing the filing •of the motion at a subsequent term. In our opinion the causa causans of the failure to file the motion in time was the fact that the counsel selected by Mr. Chappell to represent him failed to file the motion merely because some person, unknown to him, stated that the verdict was for the plaintiff, and he was satisfied to take this statement as the truth, though he had nearly three hours afterwards in which to inform himself more accurately. Whether this was negligence or oversight, in neither event is it -such a “good reason” as is contemplated by the Civil Code, §5487.
The certiorari was properly dismissed, under the rulings in Stover v. Doyle, 114 Ga. 85 (39 S. E. 939), and Dykes v. Twiggs County, 115 Ga. 701 (42 S. E. 36); and it is not necessary for us to decide at this time whether plaintiff in error could have pro'eeeded both by certiorari and motion for a new trial to review ihe same judgment. Certain it is that the reason why the motion for new trial was not filed before the adjournment of the court is not sufficiently strong to require a holding that the judge ■erred in refusing to consider the merits of the motion.
Judgment affirmed.