72 Ga. 204 | Ga. | 1883
During the term when a case was tried, a motion for new trial was made and a brief of evidence was filed, but owing to a disagreement of counsel, the brief was not then approved. When the motion was called at that term, counsel for plaintiff not being present, it was continued by the court to the next term. When it was then called, a motion was made by defendant to dismiss it, because the brief of evidence had neither been agreed upon nor approved at the term when the motion was made. The motion to dismiss was overruled, and the brief perfected:
Held, that it was proper to overrule the motion to dismiss. It was in the discretion of the court to continue the motion for new trial, and at any time thereafter, before the hearing, it could be amended by perfecting the brief. 49 Ga., 179 ; 54 Id., 256; 44 Id., 266 ; 56 Id., 468.
(a.) The cases in 5 Ga., 399 ; 8 Id., 112; 9 Id., 504, arose under the rule as it existed prior to the adoption of the Code. In the cases in 50 Ga., 595 ; 52 Id., 354, no brief at all was filed which was agreed upon or approved at the trial term, or any subsequent term of the court. The cases in 66 Ga., 277, and 68 Ga., 815, rested upon the agument of counsel, and it was held that time was of the essence of the contract.
