102 Ga. App. 460 | Ga. Ct. App. | 1960
On the hearing of the defendants’ motion to have the motion for new trial filed nunc pro tunc, counsel for the defendants testified that he left the paper with Mrs. Sara Poole who said she would handle the filing for him, and that later he went back to her office and took the paper with him. Mrs. Poole testified that she took an oath as a deputy clerk in 1944, that she later took an oath as a special deputy marshal
Counsel for the defendants contends that a judgment granting the motion for the nunc pro tunc order was demanded inasmuch as he testified that he left the paper with Mrs. Poole and she, not remembering, did not dispute his testimony. Such contention is without merit. While Mrs. Poole testified that she had taken an oath as a deputy clerk in 1944 and again in 1947 there was no direct evidence that she, at the time of the purported tender, was a deputy clerk. She testified that after working in the clerk’s office for a period of time she was assigned to Judge Henson. Mr. Chambers, the clerk of the court, referred to those persons serving in the capacity that Mrs. Poole served as “the clerks of the judges” and not as deputy clerks of the court. While Mrs. Poole testified that she had taken no further oath since taking the oath in 1947 as a deputy clerk this is not evidence that she still holds such position for it may well be, and this court cannot take judicial notice either way, that no oath is required of a judge’s clerk in the Civil Court of Fulton County. If Mrs. Poole was the “‘Judge’s Clerk,” then leaving the motion for new trial with her would not be tantamount to filing it. See New England Mortgage Sec. Co. v. Collins, 115 Ga. 104 (2) (41 S. E. 270), where it was said: “The proper office in which to file a motion for a new trial is that of the clerk of the court in which the case was tried. This being so, merely leaving the motion in the office of the judge, under the care of his special- bailiff, amounts to no filing at all.”
The judgment overruling the motion to have a nunc pro tunc order entered was not error for any reason assigned.
Judgment affirmed.