Taliaferro v. Columbus Railroad Co.

130 Ga. 570 | Ga. | 1908

Evans, P. J.

(After stating the facts.)

1. The plaintiff in error contends that the court erred in refusing to dismiss the motion for new trial, because the movant failed, within thirty days after the trial, either to file a brief of the evidence or to obtain an order granting further time in which to file the same. The Civil Code, §5484, provides that when the term continues longer than thirty days, as was the case here, the application for a new trial “shall be filed within thirty days from the trial, together with a brief of evidence, subject to the approval of the judge and subject to the right of amendment allowed in applications for a new trial; but all applications herein provided may be heard, determined, and returned in vacation.” Section 5485 provides that “Where an order is taken to hear a motion for a new trial in vacation, the brief of evidence must be presented for approval within the time fixed by the order, or else the motion will be dismissed.” In Brunswick Co. v. Gale, 91 Ga. 813 (18 S. E. 11), it was,held that “Under the act of November 12th, 1889, amending section 3719 of the code, when the term of a court continues longer than thirty days after a trial is had, the expiration of the thirty days is the end of the term for that case so far as .an application for a new trial and filing a brief of evidence are concerned” As was said in Gould v. Johnston, 123 Ga. 769 (51 S. E. 610), “Leave to prepare and file a brief of the evidence on or ■before the hearing must be unequivocally granted, else the movant can not justify an omission to follow the practice prescribed 'in the code section last cited; and where the order relied on by him as authorizing a departure from this practice is ambiguous ■and was not intended by the trial judge to be understood as extending the time for filing a brief of the evidence, the movant is not in a position to excuse his failure to comply strictly with the terms of the statute.” Several cases are there cited in support of 'this statement of the law. In Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879), it was held that “Unless there is an order of the ■court relieving the movant in a motion for a new trial of the neeessitjf of filing a brief of evidence in accordance with the terms of ■the Civil Co'de, §5484, whenever the time fixed by the provisions •of that section has expired, the motion for a new trial is ripe for dismissal at any time that the judge has jurisdiction to entertain a motion to that effect.” A brief of evidence is indispensable to a valid motion for new trial. Moxley v. Ga. Ry. & Elec. Co., 122 Ga. 493 (50 S. E. 339). It must be filed in connection with the ■motion, within the time limited by the statute; or within such ■time an order of court must be obtained granting further indulgence in respect to the time of filing. Where the term continues longer than thirty days after the trial, the Civil Code, §5484, is mandatory that one of these two courses must be pursued. After the expiration of the thirty days, where neither the brief has been filed nor an order taken stipulating for filing one at-a later time, the incomplete motion no longer legally pends. No subsequent •order of the court can give it vitality. The statute allows a motion for new trial to be made upon complying with certain requirements within a limited time; and where the movant fails within such time to obey the positive mandate of the statute, his motion is aborted. The statute suffers no excuse for failure to comply with its provisions. The order allowing further time in which to file the brief of evidence in the present case,'having been granted more than thirty days after the trial, was as if it had been granted in vacation. As no brief of evidence was filed within thirty days, ■and no order taken within that time allowing further time within which to file it, the court had no power to grant the order allowing additional time within which to file the brief of evidence, when the case was called some sixty days after the trial, but should have dismissed the motion for this reason. The defendant in error contends that the language of the original order, setting the ease for a hearing* “as soon as counsel can be heard,” is broad enough to embrace all things which were prerequisite to the perfection of the motion for new trial, and in effect gave the defendant until the motion could be heard to file the brief of evidence. With this contention we can not agree. This was certainly not an unequivocal grant of such permission, and in fact this order did not in any way refer to the brief of evidence. This order was in many respects similar to that which was taken in West v. Smith, 90 Ga. 284 (15 S. E. 912), where movants were granted “until the hearing to perfect motion and make such amendments as may be desired.” In that case it was held that the motion was properly dismissed when the (brief of evidence was presented at the hearing, “months after the trial term had expired.” We therefore hold that the court erred in refusing the motion to dismiss the motion, for a new trial. Judgment reversed.

All the Justices concur.