Opinion
33475.
DECIDED MARCH 16, 1951.
Damages; from Tift Superior Court — Judge Forehand. August 19, 1950.
John T. Ferguson, for plaintiffs in error.
Briggs Carson Jr., Robert R. Forrester, contra.
1. Where an order is taken in term time to hear a motion for a new trial in vacation, and such order limits the time for presenting the brief of evidence to such date, upon failure of the movant to meet the terms of the order, the trial court must, on motion, dismiss the motion for a new trial. Code, § 70-302; Cohen Co. v. Lester, 103 Ga. 565 ( 29 S.E. 823); Woolf v. State, 104 Ga. 536 ( 30 S.E. 796); Edmonds v. State, 122 Ga. 728 ( 50 S.E. 936); Hyatt v. Cowan Co., 115 Ga. 608 ( 41 S.E. 985). And if no time is set by the court for the perfection of the motion and the statutory time elapses without presentation of a brief of the evidence, the court should dismiss the motion. West v. Smith, 90 Ga. 284 ( 15 S.E. 912); Taliaferro v. Columbus R. Co., 130 Ga. 570 ( 61 S.E. 228).
2. Where the motion for a new trial is not heard on the date set in vacation, but the original order of court setting it for that date contains the provision that the movant "has until the final hearing of the motion to prepare and present for approval of the court a brief of the evidence" or other like words, the motion for a new trial will go over until the next term of court, and from term to term thereafter until called up for hearing, unless it is made to appear that the failure to hear such motion was due to laches on the part of the movant. McWane Cast Iron Pipe Co. v. Barrett, 72 Ga. App. 161
( 33 S.E.2d, 528); Ward v. Ward, 134 Ga. 714 ( 68 S.E. 478); Maynard v. Head, 78 Ga. 190 ( 1 S.E. 273); Shockley v. Turnell Bearden, 114 Ga. 378, 381 ( 40 S.E. 279).
3. An order merely continuing a motion for a new trial to a future date without any words of limitation does not abridge the right given the movant in the first instance to have "until the final hearing" in which to file a brief of the evidence, nor is the vitality of the first order destroyed because the hearing is continued to a later date. If the court wished to limit the time in which the movant may perfect the motion and present a brief of the evidence, he should do so by appropriate provision in the first or any subsequent order relating to this subject. James v. John Flannery Co., 6 Ga. App. 811, 815 ( 66 S.E. 153).
4. Accordingly, where, as here, an order in term time set a motion for a new trial for hearing in vacation, which order gave to the movant the right to have until the final hearing to prepare and present for approval a brief of the evidence, and the order further specified that if for any reason the motion for a new trial was not heard at the time set therein, it might be heard by consent of the parties or upon five days' notice of the time fixed by the presiding judge on application of the opposite party, and that if the motion was not heard before the beginning of the next regular term of court it should stand on the docket until heard and determined at said term or thereafter, and where the motion was not heard on either of the dates set in vacation, and was not heard by consent, nor any time for said hearing fixed by the trial judge after the last date set in vacation (September 2, 1950) nor was the motion for a new trial ever called up for hearing in its regular order in term, and where it does not appear from the record that the failure to hear the motion was due to the laches of the movant, the trial court properly overruled a motion to dismiss the motion for a new trial, filed during a subsequent term but before the motion for a new trial was called up for hearing.
Judgment affirmed. MaCIntyre, P. J., and Gardner, J., concur.
DECIDED MARCH 16, 1951.
The plaintiff in error obtained a verdict and judgment against the defendants in error in the Superior Court of Tift County at the June term, 1950. The latter filed a motion for a new trial on June 10, 1950, which motion contained an order dated that day and signed by the trial court as follows:
"The defendants having made a motion for a new trial in said case, on the grounds therein stated, and said grounds having been approved by the court, and it appearing that it is impossible to make out and complete a brief of the testimony in said case before adjournment of court; it is ordered by the court that said motion be heard and determined on the 19th day of August in vacation at Tifton, Georgia, and that movant may amend said motion at any time before the final hearing.
"If for any reason said motion is not heard and determined at the time and place above fixed, it is ordered that the same shall be heard and determined at such time and place in vacation as counsel may agree upon, and upon failure to agree, then at such time and place as the presiding judge may fix on the application of either party, of which time and place the opposite party shall have at least five days' notice.
"If for any reason this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter.
"It is further ordered that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case, and the presiding judge may enter his approval thereon at any time, either in term or vacation, and if the hearing of the motion shall be in vacation, and the brief of evidence has not been filed in the clerk's office before the date of the hearing, said brief of evidence may be filed in the clerk's office at any time within ten days after the motion is heard and determined."
At the December term, 1950, counsel for the plaintiffs in error filed the following motion to dismiss the motion for a new trial:
"Comes now the plaintiff in the above stated case at the regular December term, 1950, of Tift Superior Court and moves to dismiss the motion for a new trial now pending in said case and in support thereof shows:
"1. On the 10th day of June, 1950, the attorneys for movants filed a motion for a new trial in said case, and the same was set down for a hearing on the 19th day of August, 1950, a copy of said motion together with said order is hereto attached marked `Exhibit A', leave of reference to the same being prayed as often as may be necessary.
"2. On the 19th day of August, 1950, the following order was taken: `Georgia, Tift County: The within motion for a new trial coming on for hearing and it appearing that the record in said case is not complete, the said hearing is continued until September 2, 1950. This 19th day of August, 1950. W. C. Forehand, Judge SCTJC,' a copy of said order being hereto attached marked `Exhibit B', leave of reference to the same being prayed as often as may be necessary.
"3. On the 2nd day of September, 1950, neither the attorneys for movants nor the respondent appeared and no brief of evidence was filed at that time in connection with said motion.
"4. On the 2nd day of September, 1950, no order was taken and since the 2nd day of September, 1950, no further order or orders have been taken in said case and no brief of evidence has been filed or approved.
"Wherefore, plaintiff prays that said motion for a new trial be dismissed for the following reasons:
"A. Because the order of court taken on the 19th day of August, 1950, did not have the effect of extending the time within which to file the brief of evidence to the 2nd day of September, 1950, and did not preserve the rights of movants to file a brief of evidence beyond September 2, 1950.
"B. Because no order of the court was taken on the 2nd day of September, 1950, preserving the rights of the movants granted them by the original order of the 10th day of June, 1950.
"C. Because no brief of evidence has been filed and no order of the court has been taken extending the time within which a brief of evidence might be filed.
"D. Because the said motion in its present status is not a valid motion and is a mere nullity, a mere embryo and cannot subsist or develop into a proceeding in court since the requisite brief of evidence has not been filed.
"E. Because said motion no longer legally pends, no brief of evidence having been supplied as required by law."
The trial court entered an order on this motion setting the same for hearing on the 6th day of January, 1951, which was during the December term of Tift Superior Court, directing movants to show cause why the motion to dismiss should not be sustained. Upon hearing said motion to dismiss the motion for a new trial, the court overruled the same, and this judgment is assigned as error.