158 Ga. 103 | Ga. | 1924
Lead Opinion
(After stating the foregoing facts.) The terms of the original order, conferring upon the movant the right and privilege of filing amendments to the original motion for new trial and filing and having approved the brief of evidence, were in their scope sufficient to preserve the rights of the movant in these respects until the time at which the motion was finally heard and the brief of evidence filed and approved; especially when we consider the intermediate orders that were passed preserving the rights originally granted. It is true that there were certain orders passed at chambers on dates other than those fixed at a time in the original order, and without being fixed by the judge after notice to both parties. But conceding that at the time when these intermediate orders were passed the court was without jurisdiction of the case, and that for this reason such orders are to be treated as nullities, without force and effect, still it is apparent that under the terms of the order first granted the case was carried into the subsequent term of the court. In the original order granted is the following language: “If for any reason this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter..” This order had the effect of preserving the motion and the rights of the movant until the March term, 1923. On July 14, 1923, “in term time,- the March term, 1923, of said court not having been ad
We are of the opinion that the motion to dismiss should have been overruled, and that the court erred in sustaining the motion to dismiss. The orders which are quoted above in the statement of facts, and again referred to, carried the motion alive into the March term, 1923; and while the motion and the orders there'on were in force, the plaintiff completed the motion in time' and hád duly approved and filed the brief of evidence. Section 6090 of • the Civil Code is in the following language: “Where an order is taken to hear a motion for a new trial in vacation, thé brief of evidence must be presented for approval within the time fixed by the order, or else the motion will be' dismissed. At the time fixfed for the hearing, the judge may finally approve the motion and ‘ brief, with all amendments thereto, and pass on the motion, with the right to either party to except as in term time; but the judge in his discretion, before or at that time, may adjourn the hearing
And in the case of Napier v. Heilker, 115 Ga. 168 (41 S. E. 689), it was said: “The fact that the orders passed at the preceding term of the court had fixed the time during that term for the presentation of a brief of the evidence for approval would not deprive the court of the power to allow a brief of evidence to be filed at a subsequent term. If for any reason a correct brief of the evidence could not be then had, of course the court could refuse to approve it, if it did not come up to the requirements of the law; but the orders passed at the previous term, fixing dates from time to time for a hearing of the motion, would not deprive the court of the power to allow a brief of the evidence to be filed at a subsequent term, if a correct brief could be then obtained, and if an incorrect brief was then tendered, the judge had power in his discretion to allow a reasonable time for the movant to have the brief made correct.” In the case of Mutual Life Insurance Co. v. Hamilton, 119 Ga. 338 (46 S. E. 434), where the order taken was similar to the original order in this case, the court held that the original term order gave the movant in the motion for a new trial until the final hearing thereof to prepare and have approved and filed a brief of the evidence. There were intermediate orders in the Hamilton case. They contained nothing limiting the right of the movant to have a brief of the evidence approved and filed upon the final hearing. They did not limit the right of the movant in respect to the privilege of filing the brief of evidence; and the court held, as we have seen, that under the original order the rights of the movant in this respect were preserved. In the case of Maynard v. Head, 78 Ga. 190 (1 S. E. 273), it was ruled: “It was proper to refuse to dismiss the motion for a new trial in this case. Having been continued and carried regularly to the May adjourned term of the court, it was then properly in court, and the court had full jurisdiction thereof. The order then granted, giving the movant until the final hearing of the motion to prepare and perfect the brief of the evidence, was binding upon the parties; nor was this order vacated because the case was not heard in. vacation at the time set therefor, but it
We are of the opinion that the motion to dismiss the motion for new trial should not have been sustained on any of the grounds. It does not appear that the movant had been guilty of such laches up to the time the case came on for hearing in the March term, 1923, as would work a dismissal of the motion for a new trial. But on the question of laches, though the court sustained this ground apparently by the first order quoted dismissing the case, by a subsequent order passed on the same day, July 14, 1923, of its own motion the court passed a supplementary or amendatory order reciting that the court did not intend to sustain the ground of the motion to dismiss based upon the alleged laches on the part of the movant in the motion for new trial, and therefore modified the first order so as to sustain the motion to dismiss on all the grounds except the ground based on laches. The granting of this supplementary order was excepted to in a cross-bill of exceptions filed by defendant in error. The order modifying the first order was passed not only at the same term, but on the same day at which the original order was granted; and we are of the opinion that it was within the authority of the -court to modify the first order which had been inadvertently made' broader than the court intended; and the judgment of the court excepted to in the cross-bill of exceptions should be affirmed.
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.
Rehearing
ON MOTION ROE REHEARING.
Whether the first order taken be construed as an order fixing a date for the hearing of the motion in vacation or as fixing a date
Motion for rehearing overruled.