30 S.E.2d 94 | Ga. | 1944
1. Where, on the hearing of a motion for new trial on July 23, 1940 the judge entered an order that if the plaintiff, within twenty days from date, would pay into court to the clerk for the benefit of the defendant a certain sum with interest from a named date, a new trial would be refused, but "if the plaintiff does not do so within the said twenty days, a new trial is granted in said case," and no money was paid to *546 the clerk within twenty days from said date, the effect of such order was to grant a new trial.
(a) The result was not affected by the fact that on July 25, 1940, the defendant sued out and had certified a bill of exceptions assigning error on the order of July 23, 1940. Such bill of exceptions being premature, the trial court did not thereby lose jurisdiction of the case, nor did the Supreme Court acquire jurisdiction.
(b) Nor is a different ruling required by reason of the fact that the plaintiff died on July 27, 1940, and her administrator qualified on September 3, 1940, and that on October 31, 1940, the day after the remittitur from this court was made the judgment of the trial court — this court having dismissed the writ of error (Peyton v. Rylee,
2. Therefore it was error for the trial court, on further consideration of the same motion for new trial, to enter on January 12, 1944, a second order refusing a new trial, such order of refusal being based on the theory that the bill of exceptions above referred to having been certified as aforesaid, and the plaintiff having died on the date named, and the attorney for the administrator, on the day after the Supreme Court's remittitur was made the judgment of the trial court, having made the payment to the clerk as above stated, there had been a substantial compliance with the conditions in the order of July 23, 1940.
The date of the first order of the judge, which contained the condition as to the payment of ten dollars with interest at 7 percent, per annum from the date of the verdict, was July 23, 1940. The ten dollars without interest was paid into court on October 31, 1940. This was not within the twenty days, even though the failure to pay the small amount of interest might be overlooked under the maxim, de minimis non curat lex. Counsel for the defendant in error contends that the delay did not violate the condition, and did not make the grant of the new trial absolute, for the following reasons: He says, first, that the signing of the bill of exceptions two days after the judge prescribed the condition operated to toll the time given for the payment of the money. Cases are cited to the effect that when a bill of exceptions is signed, the trial court thereby divests itself of all further jurisdiction in the cause, places it in the reviewing court, and that any further action by the trial judge is coram non judice. Such decisions are not in point. There may be other reasons why they are not applicable under the facts, but it is enough to say that no nisi prius judge can divest himself of jurisdiction and confer it upon a court of review by certifying and signing a bill of exceptions in a case where the court of last resort has no jurisdiction. *549
In this very case, the writ of error on the former appearance was dismissed by this court for lack of jurisdiction to entertain it. The writ being a mere nullity, neither party can claim any advantage therefrom. The second contention is that since Mrs. Nancy J. Peyton died just four days after the passing of the order allowing her twenty days in which to pay into court the ten dollars with interest, it was impossible for her to comply within the time limit, and that when her administrator paid the money into court on the day after the filing of the remittitur, this was a substantial compliance with the order. The payment within the twenty days was a mere privilege which she might exercise. Her administrator, now a party to the present case, can not successfully urge that, since death prevented her from complying with the condition, the court will treat it as a compliance, and hold that the condition was met when her counsel paid the money into court long after the date specified, and that as a result the new trial was refused. That it was impossible for her to comply with the condition, may be a misfortune, but the impossibility of compliance did not operate as a fulfillment of the condition. The question is in principle ruled by the decision of this court in Dean v. Northwestern c. Insurance Co.,
In other jurisdictions there has been quite a contrariety of opinion as to the question involved in Dean v. NorthwesternMutual Life Insurance Co., supra. The ruling there made, however, is in line with a large number, if not a majority, of the decisions. See the authorities listed in Mutual Life Insurance Company of *550
New York v. Johnson,
The judgment refusing a new trial must be reversed.
Judgment reversed. All the Justices concur.