145 Ga. 89 | Ga. | 1916
1. In all applications for new trial it is provided that the opposite party shall be served with a copy of the rule nisi, unless such copy be waived. Civil Code, § 6080; McMullen v. Citizens Bank, 123 Ga. 400 (51 S. E. 342); Smedley v. Williams, 112 Ga. 114 (37 S. E. 111). But no time is specified in which such applications are to be heard or rules nisi are to be served. These are matters within the control of the judge in the exercise of a sound discretion.
2. It was not an abuse of discretion to refuse, on motion made at the hearing after both sides had announced ready, to dismiss an application for new trial because service of the rule nisi had not been made or acknowledged or waived, where it appeared that the failure to serve was due to the fact that when, after the application for new trial and rule nisi had been duly filed, the attorney for the applicant approached the attorney for the respondent to get him to acknowledge service, the former was told by the latter that he had seen the application in the office of the clerk of the court and had acknowledged service, and the former did not know, until the motion to dismiss was presented, that service had not been acknowledged, but, upon so learning, caused service to be perfected, and stood ready to proceed with the trial; and that the respondent was not rendered less ready for trial. There was a conflict of evidence; but the judge as trior was authorized to find the facts as just indicated.
3. The petition set forth a cause of action, and was not subject to the special demurrers upon the overruling of which error was assigned.
4. The judge charged the jury: “If you should believe from the evidence
5. Other grounds of the motion for new trial are of such character as not to require elaboration, and show no error requiring a new trial.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.