10 Ga. App. 417 | Ga. Ct. App. | 1912
The sole question presented by this writ of error is whether the trial judge erred in dismissing the motion for new trial upon the ground that no brief of the evidence had been filed as required. It appears that a judgment was entered in favor of Mendel against Martin on. January 7, 1910. A motion for new trial was made, and the court thereupon passed an order providing that the movant should have until the hearing to prepare and present for approval a brief of the evidence, and that the judge might enter his approval upon the brief of evidence at any time in term or in vacation. The time set for the hearing of the motion for new'trial was January 20, and on that day the- movant presented what he claimed to be a correct brief of the evidence adduced upon tfiV trial. The judge declined to approve the brief, holding that it was incorrect, and the case was duly continued until January 27, when, the judge not -being present, the hearing went over to the next regular April term of the court. It was thereafter continued from time to time until the 10th of January, 1911, when a motion of the plaintiff’s counsel to dismiss the motion for a new trial was sustained by the court, in the following order: “On hearing the foregoing motion to dismiss movant’s motion for new trial, and it appearing that counsel can not agree upon a brief of the evidence in the case, and the court not being able to remember the evidence at this time, [owing] to the great lapse of time since said case was tried and the amount of business disposed of by the court, it is therefore ordered and adjudged by the court that said motion to dismiss be, and the same is, hereby sustained, and the motion for new trial dismissed.” The plaintiff in error excepts to the order dismissing the motion for new trial, and urges that, under the plain provisions of the code, it was the duty of the judge, if the movant’s brief was not correct, to correct and approve it; that after a lapse of several months the court can not refuse to approve a brief of the evidence on the ground that counsel can not agree to it and that the court does not remember the evidence; that if the court could do this, the motion for a new trial in any case could be dismissed at the will of the judge by his mere refusal to approve the brief of evidence.
The history of the case is to be found in the judge’s explanatory note to the bill of exceptions, and we can not go anywhere else to ascertain the truth as to what occurred antecedent to the motion
From the statement of the judge it appears that the rear ground upon which the motion was dismissed was that the court, after the long lapse of time, could not remember the evidence so as to approve the brief. Of course, it followed that if there was no brief, there could not be a motion for a new trial; and,' the motion being defective, there was no error in dismissing it. After reading the statement of the judge we can not say that he abused his discretion in dismissing the motion. It is well settled that in a case like the one at bar the approval or disapproval of the brief of evidence is a matter of discretion, and it does not appear that the plaintiff in error would gain any advantage in a case like this if the reviewing court should hold that the lower court had abused its discretion.