Columbia Fire Insurance v. Sams & Co.

81 S.E. 856, 141 Ga. 641, 1914 Ga. LEXIS 87

• Court: Supreme Court of Georgia
• Decided: April 27, 1914
• Status: Published

Opinion

Atkinson, J.

1. Where a motion for new trial is set for hearing in vacation, a bill Of exceptions, complaining of the judgment rendered in vacation on such motion, must be presented within thirty days from the date of the decision. Civil Code, § 6152; In re Ross, 95 Ga. 569 (20 S. E. 268); McDonough v. Sweat, 92 Ga. 577 (17 S. E. 915); King v. Hiles Carver Co., 112 Ga. 157 (37 S. E. 178).

2. The latter portion of Civil Code § 4864j in regard to the time within which judges should render decisions in motions for new trials, injunctions, demurrers, and all other motions after the same have been argued, which declares that “it shall be the duty of such judge to file his decision with the clerk of the court in which such case is pending, and notify the attorney or attorneys of the losing party of his decision,” is directory, and will not suffice, when considered in connection with Civil Code § 6152, to extend the time prescribed therein for presenting bills of exception for approval.

(a) The bill of exceptions recites that, after the rendition of the decision complained of, the judge forwarded the papers to the clerk with instructions to notify counsel of the action of the court, and the clerk failed to give the notice. In the transcript of the record, following the order overruling- the motion for new trial, appears an entry .by. the clerk that such order was filed and notice thereof given counsel for the losing party on the next day after the order was granted.

April 27, 1914.

Writ of error from Fayette superior court. Motion to dismiss.

Holden ■& Shackelford, for plaintiff in error. J. W. Wise, J. W. Culpepper, and Daley & Chambers, contra.

3. The motion to dismiss the bill of exceptions must prevail.

Writ of error dismissed.

All the Justices concur.