113 Ga. 109 | Ga. | 1901
Davison & Fargo sued Thompson in the superior court of Warren county. At the April term, 1898, of that court the case was tried and resulted in a verdict in favor of plaintiffs for $805 principal, and $15.05 interest to April 23, 1898. A motion for a new trial was filed in due time by the defendant, and by an order passed in term it was provided that the motion should be heard in vacation on June 20, 1898. The hearing of the motion was for different causes duly and legally continued -until August 30,1898, when the. same was heard, and the judge passed the following order : “ This motion for a new trial came on to be heard under an order taken at the regular April term, 1898, of Warren superior court, and subsequent agreement of counsel. Now, after carefully-considering the same, it is ordered, adjudged, and considered that a new trial be granted and the verdict and the judgment be set aside, unless the plaintiff, within thirty days, writes off said verdict and judgment all except six hundred and eighty-three dollars and twenty-six cents principal, and fifteen dollars and five cents interest to April 23d, 1898, in which last-named event the motion for new trial is refused and a new trial denied.” To this order the defendant excepted and brought the case to this court. Thompson v. Davison, 107 Ga. 238. On April 20, 1899, the writ of error was dismissed it being held that “ An exception to a judgment granting a new trial unless the prevailing party complies with a specified condition will not be considered by this court when the plaintiff in error makes it appear on the argument here that, because of the failure of the opposite party to avail himself of the condition, a new trial must actually result.” At the October term, 1899, of the superior court the remittitur was filed, and the judgment of this court was made the judgment of the superior court. The “ case was continued on the docket of the superior court” until the April term, 1900, when it was called for trial, and the plaintiffs filed a “petition asking the court to permit them to write off the verdict as required by the judge’s order in passing upon the motion nunc pro tunc.” The court overruled a demurrer to this petition, and proceeded to hear testimony on what was the agreement between counsel as to the matter of complying with the judge’s order in reference to writing off a portion of the verdict. The evidence thus introduced clearly establishes that counsel for plaintiffs had determined to write off from the verdict the amount specified in the judge’s order, in order to
We think the court erred. The order passed in vacation distinctly declared that the plaintiffs must exercise the right to write off within thirty days, and there was ño power in the court, at a term subsequently held; to extend this time. The court in its order says “ that in the filing of said bill of exceptions before said time had expired there was an agreement between counsel for plaintiff and counsel for defendant, whereby the plaintiffs were misled into permitting the time limit to expire, which they would not have done but for said waiver on the part of defendant’s counsel.” There is no pretense that there was an agreement in writing between counsel that the verdict should be treated as written off in conformity to the order of the judge, and counsel for defendant distinctly denies that there was any agreement whatever to that effect. Civil Code, § 5651. Allowing the plaintiffs to write off from the verdict at the
Judgment reversed.