131 Ga. 465 | Ga. | 1908
(After stating the foregoing facts.)
We think the coñrt erred in dismissing the motion for new trial under the circumstances appearing in the statement of facts. The statute requires a motion for new trial to be filed during the term at which the trial was had, and after the term has ended it is too late to file the motion. A brief of evidence is an indispensable part of .the motion for new trial, and must be filed either during the term at which the motion was made, or it may be filed in vacation if a term order is taken granting this privilege.^ A failure to file the brief of evidence in term or within the time limited by the term order is ordinarily a good ground for dismissing the motion. Taliaferro v. Columbus R. Co., 130 Ga. 570 (61 S. E. 228). But the filing of the motion and the filing of the brief of evidence stand upon, very different footings. As was observed in Hilt v. Young, 116 Ga. 712 (43 S. E. 78), “the requirement that a motion for a-new trial shall be deposited with the clerk, so that it may be put upon record and be subject to examination, is one in which others than the litigants may be interested. The judgment under review may be one affecting title to property. One having no notice of the pendency of the motion might purchase the execution and suffer loss thereby.” It is the pendency of the motion which affects third parties with notice. The brief of the evidence in the case is a necessary accompaniment of the motion — the motion is not complete without it. The essential office of the brief of evidence is 'to illustrate the merit of the grounds of the motion. The movant is required to present to the court a substantial photograph of the case, in order that the judge may determine whether the grounds of the motion show errors of such a character that a new trial should be had. The public are not interested or concerned with the merits of the motion. The filing of a brief of the evidence has never been recognized by this court as'a jurisdictional fact. Thus it has been rifled that when a motion for a new trial has been fully argued, it is too late to move to -dismiss it because
Judgment reversed.