22 Ga. App. 616 | Ga. Ct. App. | 1918
No brief of evidence waS filed with the motion for a new trial. The hearing of the motion was set for the 3d day of October, 1917, by an order which provided “that movant have until October 3, 1917, to prepare and present for approval a brief of the evidence in said case.” On December 13, 1917, the following order, was passed: “The within motion is dismissed for want of prosecution, and for the further reason that no brief of evidence has been filed as required by law.” On December 21, 1917, the movant’s attorney filed a motion to set aside the order dismissing the motion for new trial, “1st. Because said judgment was signed within five days of the convening of the December term, 1917, and therefore after the September term of said court had as a matter of law adjourned, and when court was not legally in session. 2d. Because no notice was given to movant or his attorney that said motion would be called up at said time and at said place or at any other time, while under the law, said motion not having been heard at the time same was set, if was the duty of the solicitor to give ten-days notice in writing to movant or his .attorney, with intention to call same up.” On February 11, 1918, the following order was passed: “This motion to set aside judgment being set by special order for two o’clock p. m., and it now being two thirty p. m., this petition refused and motion overruled.” Held: Nothing in the record authorizes this court to hold that this order was erroneous. Counsel for the movant should have been present at the time fixed for the hearing of Ms motion. In addition to this, and even granting that the order dismissing
Judgment affirmed.