Eason v. Mayor of Americus

106 Ga. 179 | Ga. | 1898

Lumpkin, P. J.

This case was tried November 27, 1897, during a regular term of Sumter superior court. A motion for a new trial was ■ duly filed, and an order passed setting the same for a hearing on the first day of January, 1898, and allowing the movant until December 27, 1897, in vacation, to file a brief of the evidence. No brief was filed within the time thus limited. On January 1, 1898, the court passed an order continuing the hearing of the motion until February 5, 1898, and allowing the movant until January 17 to file a brief of the evidence. In this order, however, the-right of the respondent to move to dismiss the motion for failure to comply with the terms of the original order as to the filing of a brief qf the evidence was expressly reserved. On February 5, 1898, the hearing of the motion was again continued to the ensuing May term of the court, and at that term the motion was dismissed on the ground that the movant had not filed a brief of the evidence within the time specified in the order first above mentioned. 'The reason assigned for failure to comply with this order was, :-that the court stenographer of the circuit, who by agreement Iliad taken down the testimony in the case, had not written out "¡his notes in time to enable the movant to prepare from his report a brief of the evidence by the 27th of December. The only error complained of here is the dismissal of the motion.

We have no doubt at all that the court below was right in dismissing it. In Baker v. Johnson & Harris, 99 Ga. 374, this •court, following previous adjudications, held that: “Where one '«dissatisfied with a verdict files during the term a motion for. a mew trial, and, instead of pursuing the strict law in such cases ■provided, obtains an order allowing him until a future time in ^vacation to prepare and file a brief of the evidence in the case and to amend the motion, he must abide by the terms of the order thus obtained; and consequently, if no brief of evidence is prepared and presented, the motion for' a new trial is not made dither in the manner required by law or in that pointed out by the order, and therefore is subject to he dismissed on motion." In the present case, the movant was not helped by the order of January 1, 1898, because it expressly reserved to the respond« <ent the right to move to dismiss the motion for a new trial be. cause of non-compliance with the terms of the original order.

As to the failure of the court stenographer, to write out his motes in time for the movant to use the same in preparing a brief of the evidence, see Boatwright v. State, 91 Ga. 13, holding that such an omission on the part of a stenographer constituted no legal reason for delaying the filing of a brief of the evidence beyond the time granted for this purpose.

Judgment affirmed.

All the Justices concurring.