Golden v. Credico, Inc.

185 S.E.2d 578, 124 Ga. App. 700, 1971 Ga. App. LEXIS 1069

• Court: Court of Appeals of Georgia
• Decided: October 22, 1971
• Docket: 46620
• Status: Published

Opinions

Pannell, Judge.

The appeal in the present case is from the judgment entered on the verdict. The motion for new trial was properly filed (Section 5 (e) of the Civil Practice Act; Code Ann. § 81A-105 (e)) and when tendered to the trial judge for consideration the trial judge wrote a letter to the attorney who presented the motion to him for decision. It is on a letterhead of "The Civil Court of Fulton County, Atlanta, Georgia, 30303, Chambers of Judge E. A. (Ed) Wright,” is dated May 17, 1971, and reads: "Mr. William Spearman, Attorney at Law, 400 The Equitable Building, Atlanta, Georgia, 30303, Re: Case No. 339, 882, Credico, Inc., vs. Jerry Golden, a/k/a, Jerome Golden, Dear Mr. Spearman: The Motion For New Trial which was presented to Judge Thomas L. Camp on May 14th, has been sent to me by the Clerk of the Court. I regret to advise that your Motion according to my way of thinking, is no good as I was at the office on May 14th, and was not out of the jurisdiction of the Court at any time during that day. I am, therefore, returnT ing to you the Motion for New Trial. Yours very truly, s/E. A. Wright, E. A. Wright, Judge, Civil Court of Fulton County, EAW:gd, Enel., cc: Mr. Marvin P. Nodvin, Attorney at Law, 812 Peachtree Center Bldg.” A filing entry on the letter showed it was filed in the office of the clerk of the court on June 11, 1971.

Argued October 4, 1971 Decided October 22, 1971. Lewis, Lewis, Spearman & Bynum, Wm. Lewis Spearman, for appellant. Marvin P. Nodvin, Ira S. Zuckerman, for appellee.

We refuse to accept as a proper order of court a letter by a trial judge to counsel returning to him a properly filed motion for new trial, previously sent to the judge by that counsel, stating that the motion was "no good.” This letter does not purport to be, nor is it, an order of any kind. It is at the most only proof that the judge to whom it was presented for consideration refused to consider it for an unauthorized reason.

Nor do we consider this refusal to consider the motion (even if considered an order) as one "otherwise finally disposing of” the motion for new trial. A motion for new trial can be disposed of in four ways: (1) overruled, (2) granted, (3) dismissed, or (4) withdrawn by movant. The words "otherwise finally disposed of” can mean only a dismissal or a withdrawal of the motion. The motion for new trial here has not been dismissed by any order of the court nor has it been withdrawn by movant; it is therefore still pending and the appeal from the judgment on the verdict is premature. State Bank of Leesburg v. Hatcher, 106 Ga. App. 735 (128 SE2d 339); Kurtz v. State, 115 Ga. App. 665 (155 SE2d 735); Hayes v. State, 116 Ga. App. 260 (157 SE2d 30). Movant’s remedy is either to present his motion to the same or another judge of the court for consideration (Code § 70-103) or by petition for mandamus in the superior court to compel the trial judge to consider and pass upon the motion for new trial. The appeal is dismissed as premature.

Appeal dismissed.

Bell, C. J., Eberhardt, Quillian and Evans, JJ., concur. Jordan, P. J., Hall, P. J., and Deen, J., dissent. Whitman, J., not participating.