Vanover v. Turner

41 Ga. 577 | Ga. | 1871

McCAY, J.

I. Whether the agreement of counsel to’ the brief of evidence on a motion for a new trial supercedes the necessity of its approval and revision by the Court, does not seem ever to have been distinctly' decided by this Court. The cases are numerous in which it is implied that the agreement of counsel is sufficient: 1st Georgia, 254; 3d, 220; 7th, 436; 8th, 111; 10th, 93; 13th, 403. But in none of these cases was the point actually involved in the decision.

In this case the Judge had granted a rule nisi for a new trial. The law requires the brief of the testimony to be filed, approved and revised, at the time the motion is made, and we think the act of the Court granting the new trial is a presumptive approval of the brief. If it has been agreed upon, nobody else, in such a case, can complain but the Judge, and having granted the rule, as it seems to us, he may fairly be presumed to have no cause of complaint. For myself, I think, so far as the actual brief of the testimony is concerned, the agreement of the parties super-cedes the necessity of the approval of the Judge. The rule of Court applies to cases when application is ex parte. The parties *might consent to a new trial, and I am not able to see why they might not agree to the brief of the testimony. We put the case, however, on the other ground. The granting of the rule nisi was an approval, if the parties had agreed to the brief presented.

2. Section 3429 of the Code is general, that all proceedings may be amended at any stage of the cause, and we see no reason why, if the ends of justice require it, a motion for a new trial should not abide by the same law.

Judgment reversed.