132 Ga. 360 | Ga. | 1909
Counsel for plaintiff in error make the further point that even on failure to dismiss the bill of exceptions on the ground that the brief of evidence considered by the judge in passing on the motion for a new trial was not filed pursuant to the order of the court, still such brief should be disregarded, and such assignments as are dependent upon the evidence for determination present no question for -decision. Where a term order allows the movant until the hearing to make out and present a brief of the evidence for the approval of the court, and to file the same with the clerk within ten days thereafter, it has been held that a brief which has been approved by the judge, but not filed in the clerk’s office at the time of the hearing, is sufficient to prevent the dismissal of the motion for new trial. Elmore v. Thaggard, 130 Ga. 701 (61 S. E. 726). The brief of evidence is an essential part of a motion for new trial, and its approval by the judge under an order allowing him to do so at the hearing, and making provision for its subsequent filing, is the legal equivalent of an entry of filing upon the brief by the clerk. Malsby v. Young, 104 Ga. 205 (30 S. E. 854). Such being the ease, the limitation of time in the order providing for such subsequent filing after the hearing is necessarily directory and not mandatory; and if the brief in point of fact be filed by the time the bill of exceptions is certified and such brief be specified in the bill of exceptions as a part of the record, and accordingly transmitted,
At the trial the plaintiff moved to amend the affidavit and eviction warrant by striking therefrom the words, “executrix of the last will and testament of John W. Masury deceased,” so that the cause may proceed in the name of Grace Masury. The amendment was allowed, and pendente-lite exceptions were taken. All affidavits that are the foundation of legal proceedings are amendable to the same extent as ordinary declarations. Civil Code, § 5122. In an action by or against an executor the declaration may be amended by striking out the representative character of the plaintiff. Civil Code, §5106.