City of Atlanta v. Miller

54 S.E. 538, 125 Ga. 495, 1906 Ga. LEXIS 207

• Court: Supreme Court of Georgia
• Decided: May 16, 1906
• Status: Published

Opinion

Bumpkin, J.

1. Whether a case will be reinstated after a nonsuit, upon a motion made during the same term of court, is a matter within the legal discretion of the trial judge; and where he reinstates the case, his discretion will not be interfered with unless manifestly abused. Central R. Co. v. Folds, 86 Ga. 42; Southern Ry. Co. v. James, 114 Ga. 198.

2. Where a motion to reinstate a case is made, after a judgment of non-suit based on the general insufficiency of the evidence to make out a case, the pi'oper practice is to present a brief of the evidence along with the motion. But if the presiding judge based his judgment upon a single question of law, and enough of the evidence was set out for a clear understanding of such ruling, there was no error in entertaining the motion because it was not accompanied by a complete brief of the evidence. Certainly this will furnish no ground for reversal, if the point was not made before the trial court. Wallace v. Cason, 42 Ga. 435; Chicago Cheese Co. v. Smith, 94 Ga. 663.

31 As to whether this court would have reversed the trial court for refusing a motion to reinstate a case after a judgment of nonsuit, in the absence of a brief of the evidence, it is unnecessary to decide.

4. While the truth of the ground upon which a motion to reinstate is predicated should be made to appear, yet where the presiding judge grants the motion, this is such an implied verification that, on exception to his judgment, this court will treat such ground as sufficiently verified. Aliter, had the motion been denied.

Judgment affirmed.

All the Justices concur.