5 Ga. App. 245 | Ga. Ct. App. | 1908
(After stating the foregoing facts.)
The principle is well settled that when a statute specifies a time within which a public officer is to perform an official act regarding the rights of others, it is merely directory as to the time within which the act is to be done, unless, from the nature of the act to be performed or from the phraseology of the statute, the designation of the time must be considered a limitation on the power of the officer. People v. Allen, 6 Wend. 486; Pond v. Negus, 3 Mass. 230 (3 Am. D. 131); Walker v. Chapman, 22 Ala. 116. Where the words of a statute relate to the manner in which power or jurisdiction vested in an officer is to be exercised, they must be construed to be directory. Nelms v. Vaughn, 84 Va. 696 (5 S. E. 704); State v. Connor, 86 Tex. 143 (23 S. W. 1103); People v. Cook, 8 N. Y. 87 (59 Am. D. 451); 3 Words and Phrases Judicially Defined, 2078. “Statutory prescriptions in regard to the time, form, and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done.” 26 Am. & Eng. Enc. Law (2d ed.) 689; Justices v. House, 20 Ga. 328; Wise v. State, 34 Ga. 348; Central Bank v. Kendrick, Dudley, 66. This statute does not impose any penalty upon the judge for a non-compliance with its terms, nor does it declare that the proceedings for new trial shall be null and void unless passed upon within the ten days from the filing of the motion. We conclude, not only from the phraseology of the statute, but from authority, that that part of section 7 of the act of 1903 establishing the city ■court of Waynesboro, which requires a motion for a new trial to be passed upon by the judge within ten days from the filing of the motion, is director)', and a failure on the part of the judge to comply
Judgment reversed.