Albritton v. Tygart

Court of Appeals of Georgia

Albritton v. Tygart

71 S.E. 512, 9 Ga. App. 361, 1911 Ga. App. LEXIS 552

CourtCourt of Appeals of Georgia

DecidedJune 7, 1911

Docket2975

StatusPublished

Cited by4 cases

This text of 71 S.E. 512 (Albritton v. Tygart) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Albritton v. Tygart, 71 S.E. 512, 9 Ga. App. 361, 1911 Ga. App. LEXIS 552 (Ga. Ct. App. 1911).

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Opinion

Powell, J.

The case of Tygart v. Albritton was tried at the April term, 1910, of the city court of Nashville. Verdict having been rendered in favor of the plaintiff, the defendant filed what is commonly called a “skeleton” motion for new trial, and took thereon a rule nisi, returnable on the 17th of May, in vacation. No brief of the evidence was filed, but the following order was taken: “The defendant having made a motion for a new trial in said case, •on the grounds herein 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 17th day of May, 1910, in vacation, at Nashville, and that movant may amend said motion at any time before the final hearing, and if not heard then to go over to regular term.” It will be noticed that, while this order purports to extend the time within which amendments may be made to the motion itself, it does not extend the time for the filing or presenting of the brief of the evidence. On the 17th of May, and from time to time thereafter, orders were taken extending the time of hearing, and in some of the orders, if not all of them, the right to file a brief of the evidence was preserved; that is to say, preserved so far as it was in the power of the court then to preserve it. Finally the matter came on for hearing on the 5th of September, 1910. The [362]*362movant tlien presented a brief of the evidence. The court held that it was too late to file it, and dismissed the motion.

The case seems to be controlled by the decisions of the Supreme Court in the cases of Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879), Barnes v. Macon R. Co., 105 Ga. 495 (30 S. E. 883), and Cohen v. Lester, 103 Ga. 565 (29 S. E. 823). It is true that the present order is somewhat equivocal, in that it recites as one of the reasons for continuing the hearing from the first term that “it is impossible to make out and complete a brief of the testimony in ’said case before adjournment of court;” but the cases just cited all go to the extent of holding that where the order is equivocal, the construction placed thereon by the trial judge who granted the order will be adopted by the reviewing court. It takes no special order to allow the movant to amend his original motion for new trial. The right of amendment seems to exist at all times, until the motion is finally disposed of; but the right to file a brief of the evidence stands upon a very different footing. Under the Civil Code (1910),. § 6089, it seems that, if the motion and the brief of the evidence are filed during the term, either of them may be amended thereafter, and that the judge may enter his approval upon the brief of the evidence at any subsequent time, either in term time or in vacation, when the matter lawfully comes before him for hearing. Judgment affirmed.

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Powell, J.

The case of Tygart v. Albritton was tried at the April term, 1910, of the city court of Nashville. Verdict having been rendered in favor of the plaintiff, the defendant filed what is commonly called a “skeleton” motion for new trial, and took thereon a rule nisi, returnable on the 17th of May, in vacation. No brief of the evidence was filed, but the following order was taken: “The defendant having made a motion for a new trial in said case, •on the grounds herein 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 17th day of May, 1910, in vacation, at Nashville, and that movant may amend said motion at any time before the final hearing, and if not heard then to go over to regular term.” It will be noticed that, while this order purports to extend the time within which amendments may be made to the motion itself, it does not extend the time for the filing or presenting of the brief of the evidence. On the 17th of May, and from time to time thereafter, orders were taken extending the time of hearing, and in some of the orders, if not all of them, the right to file a brief of the evidence was preserved; that is to say, preserved so far as it was in the power of the court then to preserve it. Finally the matter came on for hearing on the 5th of September, 1910. The [362]*362movant tlien presented a brief of the evidence. The court held that it was too late to file it, and dismissed the motion.

The case seems to be controlled by the decisions of the Supreme Court in the cases of Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879), Barnes v. Macon R. Co., 105 Ga. 495 (30 S. E. 883), and Cohen v. Lester, 103 Ga. 565 (29 S. E. 823). It is true that the present order is somewhat equivocal, in that it recites as one of the reasons for continuing the hearing from the first term that “it is impossible to make out and complete a brief of the testimony in ’said case before adjournment of court;” but the cases just cited all go to the extent of holding that where the order is equivocal, the construction placed thereon by the trial judge who granted the order will be adopted by the reviewing court. It takes no special order to allow the movant to amend his original motion for new trial. The right of amendment seems to exist at all times, until the motion is finally disposed of; but the right to file a brief of the evidence stands upon a very different footing. Under the Civil Code (1910),. § 6089, it seems that, if the motion and the brief of the evidence are filed during the term, either of them may be amended thereafter, and that the judge may enter his approval upon the brief of the evidence at any subsequent time, either in term time or in vacation, when the matter lawfully comes before him for hearing. Judgment affirmed.

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Bluebook (online)

71 S.E. 512, 9 Ga. App. 361, 1911 Ga. App. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albritton-v-tygart-gactapp-1911.

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