1. Where no time is fixed within which service of the motion for a new trial should be effected, such service may be perfected even after the hearing of the motion for new trial has been continued, if there be service upon the opposite party at such time before the date set for the final hearing as will enable the opposite party to prepare to resist the grant of the motion.
2. Where the verdict was not demanded by the evidence, the first grant of a new trial will not be disturbed.
No. 14402. JANUARY 13, 1943.
Webb filed his petition against Nobles, seeking cancellation of certain deeds, praying for injunction, etc. Nobles answered, denying the material allegations of the petition. On the trial the evidence was in conflict. The jury found in favor of Webb. A motion for new trial was filed, and orders taken in term time, setting the motion for hearing on September 3, 1942. One of the orders so entered in term time was as follows: "It is further ordered that if for any reason this motion is not heard and determined before the beginning of the next term of said court, then the same shall stand on the docket and be heard and determined in term time, or at any time thereafter in term or vacation that may be fixed by order of the court." No provision was made by order for service of the motion. The motion was continued until the first day of October, 1942, when it came on for hearing. The movant filed an amendment which was approved. At the time so fixed the movant announced ready for trial. Whereupon the respondent moved to dismiss the motion for new trial, on the ground that it had not been served. The court overruled the motion to dismiss, and continued the hearing until October 15, 1942, in order that service might be perfected upon the opposite party, directing that respondent be served ten days in advance of October 15, 1942. Respondent was served on October 2, 1942. Error is assigned on the overruling of the motion to dismiss, on the order continuing the hearing until October 15, and on the order directing that Webb be served. And at the hearing, a brief of the evidence having been approved and filed, the judge passed an order granting a new trial; to which ruling Webb excepted.
1. In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived. Code, § 70-306. The time within which the service shall be made is not prescribed by the statute.
Connor v.
State,
7 Ga. App. 83 (
66 S.E. 482). In
Gould
v.
Johnston,
123 Ga. 765 (
51 S.E. 608), it was said that service within a reasonable time is contemplated; and that while it is good practice for the judge to provide in his order within what time the movant shall perfect service upon the respondent, yet if made in ample time before the hearing to afford the respondent a reasonable opportunity to get ready to meet the motion, the demands of the statute will be satisfied. Where no time is fixed within which service of the motion for new trial shall be effected, such service may be perfected even after the hearing of the motion for new trial has been continued, if there be service upon the opposite party at such time before the date set for the final hearing as will enable the opposite party to prepare to resist the grant of the motion.
Connor v.
State, supra. See
Louisville Nashville R. Co. v.
Nelson,
145 Ga. 89
(
88 S.E. 544). When the time fixed for the hearing arrives, and no service has been effected, it is generally a matter in the sound discretion of the judge whether to dismiss the motion, as was done in
Smedley v.
Williams,
112 Ga. 114
(
37 S.E. 111), and
Wolf v.
Sampson,
123 Ga. 400 (
51 S.E. 335), or to continue the final hearing until service is perfected, as in
Connor v.
State, supra,
Martin v.
Monroe,
107 Ga. 330
(
33 S.E. 62), and
Louisville Nashville R. Co. v.
Nelson, supra. The order entered in term containing a provision that if the motion was not heard and determined on the date then and there fixed, the same might be heard any time thereafter [in term time or vacation that might be fixed] by order of the court, it was permissible to determine the motion for new trial on the new date so fixed in vacation. Code, § 70-301. It was also within the court's discretion at such later date to adjourn the hearing to another date in vacation and act upon it at such subsequent time. Code, § 70-302;
Stone v.
Taylor,
63 Ga. 309;
Dorsey v.
Central of Georgia Ry. Co.,
113 Ga. 564 (
38 S.E. 958).
A motion for new trial does not become automatically void because of failure to serve the respondent, and does not become void until dismissed. Town of Fairburn v. Brantley,161 Ga. 199,
200 (130 S.E. 67). Upon application of the foregoing principles, it was within the discretion of the trial court to refuse to dismiss the motion on the ground that it had not been served before the date originally fixed for the hearing, and to continue the same until service on the respondent was had, and, when this was perfected, to pass upon the merits of the motion.
2. This is the first grant of a new trial. An examination of the record discloses that the verdict was not demanded by the evidence. In such a case the well-established rule is that the discretion of the trial judge in granting a new trial will not be disturbed.
Judgment affirmed. All the Justices concur.