Board of Commissioners v. Dart

67 Ga. 765

Opinion

In this case, Judge Mershon being disqualified, Judge Simmons, of the Macon circuit, presided in his stead. The case was tried at November adjourned term of Glynn superior court and resulted in a verdict for plaintiffs. The defendant filed his motion for a new trial and obtained a rule nisi.

Not having time to complete his brief of evidence,, he obtained an order from the court to have “ until the next term of this court to perfect the said motion and brief of evidence.” The next term of the court convened on the fourth Monday in May, 1881, and on June 22a, 1881, during said term, the brief of evidence was filed and approved. Plaintiffs alleged that defendant, in failing to make out and file the brief of evidence in the interval between the adjournment of the November term and the following May term, had failed to comply with the terms of the order, and moved to dismiss the motion for new trial on this ground, which motion was overruled. Judge Simmons certifies that he held an adjourned term of Glynn superior court in February, 1881, but not having time to finish the disqualified cases, promised to return in June following and try them ; that this motion was filed during that week, and he allowed Counsel “ until the next term of court” to perfect the brief of evidence; that “my understanding of the order at the time was, that they (counsel) would have until I went there to pass on the motion, as Judge Mershon was disqualified. Acting on that, I overruled the motion to dismiss.”