Moore v. Citizens Bank
19 Ga. App. 593
Ga. Ct. App.
1917
Check Treatment
Jenkins, J.

(After stating the foregoing facts.) Under the terms of the trial judge’s order, the motion for a new trial not having been heard on the date set therefor in vacation, and no further order thereon being taken, it stood for hearing in term time; and, not being heard at the succeeding July quarterly term of the court, it thereupon went over to the next term. Civil Code of 1910, § 6090; Atlanta, Knoxville & Northern Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501); Holtzendorff v. Dillard, 136 Ga. 241 (71 S. E. 133); Phœnix Bank v. Shirling, 146 Ga. 163 (91 S. E. 23). Whether the “next term” must be taken to mean the next succeeding monthly term, or the following qiiarterly term, is the only question which the record presents for determination. If the former construction be correct, then the action taken in calling up' *596and dismissing the motion was legal and proper; but if, when the motion was mot heard at the July quarterly term, it went over by operation of law to the next succeeding quarterly term of said court,' the judge would not have authority at an intervening monthly term to call up the motion without notice and dismiss it. The petition was filed to the quarterly term of the city court of Ashburn and was tried before a jury therein. The amendatory act, approved August 3, 1916, does not abolish the distinction between the quarterly and the monthly terms, but only gives the same jurisdiction as to amount at each, and provides that the quarterly terms shall have exclusive jurisdiction in jury cases. The case with which we are dealing must have been properly entered upon the trial docket of the quarterly term, and the motion so entered upon its motion docket. The legal effect of the order originally setting the motion down for hearing at a date fixed in vacation was, relatively to this case, a continuation of the quarterly term until that time. Herz v. Frank, 104 Ga. 638 (30 S. E. 797); Atlanta, Knoxville & Northern Ry. Co. v. Strickland, supra; Cole v. Illinois Sewing Machine Co., 7 Ga. App. 338 (2) (66 S. E. 979). The motion not being then heard, and no additional order being taken, jurisdiction was not lost, but was postponed to term time. Helmly v. Davis, 111 Ga. 860 (36 S. E. 927). This term time would seem to be such term as has jurisdiction of the case. Warren v. Slaton, 14 Ga. App. 734 (2) (82 S. E. 307). The case having been filed, docketed, and tried before a jury at the quarterly term, its status as a quarterly-term case thus became fixed, and the fact that the motion in said case was a matter for the judge to hear could not give jurisdiction to the monthly term. While, under the proper order, it might have -been heard in vacation, yet if term time be relied upon for jurisdiction, then only term time during which jurisdiction to try the case would. be had would suffice. Nor do we think that the custom theretofore followed by the trial judge, as evidenced by the note to his certificate, would alter the rule. ' Of his purpose to act with perfect fairness it’ is indisputable proof; but if we be correct in our interpretation of the law, and the movant was injured by failing to receive the benefit of a substantial right which by law was allowed her, then custom must, give way thereto. Walton v. William Hester Marble Co., 17 Ga. App. 75 (86 S. E. 279).

Judgment reversed,.

Broyles, P. J., and Bloodworth, J., concur.