Gartrell v. Theobold

Court of Appeals of Georgia

Gartrell v. Theobold

15 S.E.2d 470, 65 Ga. App. 161, 1941 Ga. App. LEXIS 282

CourtCourt of Appeals of Georgia

DecidedApril 30, 1941

Docket28809.

StatusPublished

Cited by2 cases

This text of 15 S.E.2d 470 (Gartrell v. Theobold) 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.

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Gartrell v. Theobold, 15 S.E.2d 470, 65 Ga. App. 161, 1941 Ga. App. LEXIS 282 (Ga. Ct. App. 1941).

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Gardner, J.

The bill of exceptions sets forth that Lucy A. Gartrell sued William Theobold for damages. The jury returned a verdict in favor of the defendant on April 17, 1935, when judgment was entered accordingly. The plaintiff moved for a new trial, the motion containing the usual and general provisions, and the order thereon setting a date for a hearing, on or before which a brief of evidence was tó be presented for approval. The motion pended until September 21, 1940, on which date it came on for disposition. No brief of evidence was tendered to the court for *162 approval, and on motion of the defendant the motion for new trial was dismissed. Later, on October 11, 1940, a brief of evidence was approved by the judge over objection of the defendant.

It thus appears that at the time the motion for new trial was dismissed no brief of evidence had been approved. The record reveals that the grounds of the motion were the general grounds only. After the motion had been dismissed, the judge was without authority of law to approve a brief of evidence so as to make it a part of the record. There being no brief of evidence, the motion to dismiss the writ of error is well taken. The order expressly limited the day for the brief of evidence to be tendered. This was not done within the time specified. It has been held many times by this court and the Supreme Court that a brief of evidence is essential to the consideration of the errors complained of in a motion for new trial based on the general grounds. Code, § 70-302, provides to this effect. Cass v. Harrell, 102 Ga. 590 (27 S. E. 726); Dollar v. Fred W. Amend Co., 186 Ga. 717 (198 S. E. 753); s. c. 58 Ga. App. 797 (199 S. E. 845); Morris v. Gilham-Schoen Electric Co., 40 Ga. App. 649 (150 S. E. 924); Nichols Contracting Co. v. Allen, 42 Ga. App. 306 (155 S. E. 770); Blount-Hudson Chevrolet Co. v. Blount, 55 Ga. App. 864 (191 S. E. 875), and cit.

It follows that the writ of error will be

Dismissed.

Broyles, C. J., and MacIntyre, J., concur.

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Gardner, J.

The bill of exceptions sets forth that Lucy A. Gartrell sued William Theobold for damages. The jury returned a verdict in favor of the defendant on April 17, 1935, when judgment was entered accordingly. The plaintiff moved for a new trial, the motion containing the usual and general provisions, and the order thereon setting a date for a hearing, on or before which a brief of evidence was tó be presented for approval. The motion pended until September 21, 1940, on which date it came on for disposition. No brief of evidence was tendered to the court for *162 approval, and on motion of the defendant the motion for new trial was dismissed. Later, on October 11, 1940, a brief of evidence was approved by the judge over objection of the defendant.

It thus appears that at the time the motion for new trial was dismissed no brief of evidence had been approved. The record reveals that the grounds of the motion were the general grounds only. After the motion had been dismissed, the judge was without authority of law to approve a brief of evidence so as to make it a part of the record. There being no brief of evidence, the motion to dismiss the writ of error is well taken. The order expressly limited the day for the brief of evidence to be tendered. This was not done within the time specified. It has been held many times by this court and the Supreme Court that a brief of evidence is essential to the consideration of the errors complained of in a motion for new trial based on the general grounds. Code, § 70-302, provides to this effect. Cass v. Harrell, 102 Ga. 590 (27 S. E. 726); Dollar v. Fred W. Amend Co., 186 Ga. 717 (198 S. E. 753); s. c. 58 Ga. App. 797 (199 S. E. 845); Morris v. Gilham-Schoen Electric Co., 40 Ga. App. 649 (150 S. E. 924); Nichols Contracting Co. v. Allen, 42 Ga. App. 306 (155 S. E. 770); Blount-Hudson Chevrolet Co. v. Blount, 55 Ga. App. 864 (191 S. E. 875), and cit.

It follows that the writ of error will be

Dismissed.

Broyles, C. J., and MacIntyre, J., concur.

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15 S.E.2d 470, 65 Ga. App. 161, 1941 Ga. App. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gartrell-v-theobold-gactapp-1941.

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