Opinion
21813.
SUBMITTED OCTOBER 8, 1962.
DECIDED NOVEMBER 8, 1962. REHEARING DENIED NOVEMBER 19, 1962.
Alimony, etc. Polk Superior Court. Before Judge Foster.
Oze R. Horton, for plaintiff in error.
Cecil D. Franklin, contra.
Where the original show cause order of the trial judge on a motion for new trial recites that the movant is allowed until the final hearing "whenever the same may be had" to prepare and file his brief of evidence, the movant has until the date of the final hearing to present the brief of evidence. However, if he fails to present such brief at the time of the hearing and there is no merit in an alleged agreement to postpone the hearing, the trial judge's refusal, at a later time, to reinstate the motion for new trial will be upheld.
SUBMITTED OCTOBER 8, 1962 — DECIDED NOVEMBER 8, 1962 — REHEARING DENIED NOVEMBER 19, 1962.
Mrs. Elizabeth H. Davenport brought an action for alimony in the Polk Superior Court against William L. Davenport, Sr. The matter came on for hearing before a jury which returned a verdict for the defendant on March 2, 1961. The plaintiff filed a "skeleton" motion for new trial on the general grounds but did not include a brief of the evidence. On March 29, 1961, the trial judge issued an order for the defendant to "show cause before me on the ____________________ at such time place as may be fixed by the court for hearing motions for the Feb. term, 1961, why the motion should not be granted ... In the meantime and until the final hearing of said motion, whenever the same may be had, movant is allowed to amend and perfect the motion, and to prepare, present for approval, and file the brief of evidence in said case."
The matter remained unheard until February 1, 1962, when the trial judge issued an order in the following language: "The within motion for new trial having come on for hearing at this the regular motion court, and it appearing that no brief has been filed in said case nor was a brief ever submitted to counsel nor to the court; and counsel for plaintiff and defendant being present in court, and counsel for respondent having moved for dismissal of said motion, the said motion be and is hereby granted and said motion for new trial is dismissed with all costs against movant."
The plaintiff filed her motion to set aside the order and judgment of February 1, 1962. The matter came on for hearing June 21, 1962, at which time the judge passed an order denying the motion to re-instate the motion for new trial and set aside the February 1st order and judgment. From this order the plaintiff brings her bill of exceptions.
Where a case is not heard during the trial term it is automatically continued to the succeeding term. As stated by Code § 81-1414: "A cause not reached at the trial term stands over as continued." Thus, under prior rulings of this court the plaintiff would, under the terms of the order to show cause, have until the final hearing although it might be in a subsequent term to submit his brief of evidence. The defendant could not prevail with an assertion that at the end of the February term, 1961, or at any time prior to such final hearing the plaintiff must submit her brief of the evidence. Wanamaker v. Wanamaker, 215 Ga. 473, 474 ( 111 S.E.2d 94); Wills v. Wills, 215 Ga. 556, 557 ( 111 S.E.2d 355). However, as is pointedly brought out in Shockley v. Turnell Bearden, 114 Ga. 378, 381 ( 40 S.E. 279), once the day of the hearing arrives (in this case on February 1, 1962) and she neglects to present the brief of evidence the judge may properly dismiss the motion for failure to present such brief. Hence, the time would not elapse prior to a final hearing, but if the brief of evidence were not presented on the hearing it would then be too late to file it at a subsequent time.
The plaintiff further alleged that the fact that the March 29, 1961, order did not designate a specific date left such matter open and there was a "tentative" agreement by counsel to let the matter go until they agreed on a date. The plaintiff overlooks the rule of law that agreements by counsel in order to be binding upon their clients must be in writing. Code Ann. § 9-605 (Ga. L. 1957, p. 495). This is true except where such agreements are made in open court ( Perkerson v. Reams, 84 Ga. 298, 10 S.E. 624), or where one party is misled by fraudulent misrepresentations of the other. Bigham v. Kistler, 114 Ga. 453, 456 ( 40 S.E. 303), and McGinnis v. Scheer, 182 Ga. 684 (1) ( 186 S.E. 804). No such allegations are here made.
Further, there is no showing that the order to show cause contemplated or that the judge approved such "tentative" agreement. Attached as exhibits to the motion to re-instate were orders convening the Superior Court of Polk County which specified the times during the term at which hearings of motions, demurrers and other matters would be held. The judge's consent to an agreement to continue was necessary and where it was not present his discretion was paramount. Code § 81-1419; Ford v. Holmes, 61 Ga. 419 (6). Moreover, Webster defines "tentative" as provisional, conditional or uncertain. It is apparent that such agreement has no legal efficacy whatsoever.
The plaintiff having failed to present a brief of evidence on the hearing of the motion for new trial and there being no merit to his allegations as to an agreement to postpone the hearing, the trial judge properly refused to set aside the order of February 1, 1962, dismissing the plaintiff's motion for new trial.
Judgment affirmed. All the Justices concur.