Perkins v. State

126 Ga. 578 | Ga. | 1906

Lumpkin, J.

1. This case is controlled by the previous rulings of this court in which it is held that there is no law authorizing the making of a motion for a hew trial in vacation; that an extraordinary motion so filed is a mere nullity; that it is erroneous for a judge of the superior court to take jurisdiction of such a motion; and that when he does so and undertakes to decide it upon its merits, the judgment will be reversed. Collier v. State, 115 Ga. 17; Jinks v. State, Id. 243; Johnson v. State, 116 Ga. 535; Brinkley v. Buchanan, 55 Ga. 342; East Tenn. R. Co. v. Whitlock, 75 Ga. 77; Ferrill v. Marks, 76 Ga. 21.

2. The motion for new trial in this case purporting to be based on extraordinary grounds appears to have been made and decided in vacation, and. nothing was done in respect to it either at the term when the trial was had or at any subsequent term, so as to give it vitality, under the ruling in Blalock v. Waggoner, 82 Ga. 122.

"Argued October 17, Decided November 8, 1906.

Motion for new trial. Before Judge Seabrook. Effingham superior court. July 10, 1906.

Twiggs & Oliver, Edgar J. Oliver, and O. T. Guyton, for plaintiff in error. John O. Hart, attorney-general, and Livingston Kenan, solicitor-general, contra.

3. The judgment is accordingly reversed, and direction is given that the motion itself and the action of the judge thereon be hereafter, in the superior court of Effingham county, ignored and treated as a mere nullity.

Judgment reversed, with direction.

All the Justices concur.