Grantham v. State

105 S.E. 713, 26 Ga. App. 198, 1921 Ga. App. LEXIS 62

Opinion

Bloodworth, J.

1. (After stating the foregoing facts.) The order of the judge setting the motion to be heard “ at Douglas, Ga., at ten o’clock on the 20th day of September, 1920, ” was construed by him as meaning 10 o’clock a. m. This was a reasonable construction, and the judge who passed the order having so construed it, this court will not interfere. See Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879), and cases cited.

2. The court did not err in dismissing the motion for a new trial for the reasons stated in the order copied in the foregoing statement of facts, although one of the attorneys for the defendant was present and stated that “ movant expected to and would complete his motion during the day> provided a fee was paid, for same by the defendant, and be ready to hear same, ” and stated further that “Levi O’Steen was the leading counsel for movant, and he was not present, ” but made no request that the case be postponed until the arrival of Attorney O’Steen. This was correct because:

(a) Section 6080 of the Civil Code of 1910 provides that “in all applications for a new trial the opposite party shall be served with a copy of the rule nisi unless such copy is waived. ” In Smedley v. Williams, 112 Ga. 114 (1) (37 S. E. 111), the Supreme Court held: “ There was no error in dismissing the motion for a new trial for want of service of a copy of the rule nisi issued thereon upon the respondent in- the motion, it not appearing that such service had been waived. ” Smith v. Exchange Bank, 145 Ga. 310 (89 S. E. 209), is a case in which the facts are quite similar to those in the present case, and in that case it was held that “there was no error in dismissing the motion for a new trial because of failure to serve the rule nisi. ”

(&) Section 6090 of the Civil Code of 1910 provides that “where an order is taken to hear a motion for a new trial in vacation, the brief of evidence must be presented for approval within the time fixed by the order, or else the motion will be dismissed.” In Taylor v. Tanner, 143 Ga. 18(1) (84 S. E. 68), the Supreme Court said: “An approved brief of evidence is an indispensable part of the motion for a new trial; and if not prepared and presented as provided in the order setting the hearing in vacation, the motion for a new trial is properly dismissed on motion.” See also Sewell v. Sewell, 148 Ga. 473 (96 S. E. 1037).

3. The court did not abuse its discretion in refusing to reinstate the motion for a new trial on the oral motion of counsel for plaintiff in error under the facts as they appear in the record. See, in this connection, Kennedy v. Dukes, 137 Ga. 209 (73 S. E. 400). The acknowledgment of service on the motion for a new trial by the solicitor of the city court did not have the effect of vacating the order previously’passed by the judge dismissing the case, nor did it take from the judge any of his discretionary powers.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.