Luke v. Luke

123 S.E. 716, 158 Ga. 103, 1924 Ga. LEXIS 89

• Court: Supreme Court of Georgia
• Decided: April 16, 1924
• Docket: Nos. 4044, 4085
• Status: Published

Opinions

Beck, P. J.

(After stating the foregoing facts.) The terms of the original order, conferring upon the movant the right and privilege of filing amendments to the original motion for new trial and filing and having approved the brief of evidence, were in their scope sufficient to preserve the rights of the movant in these respects until the time at which the motion was finally heard and the brief of evidence filed and approved; especially when we consider the intermediate orders that were passed preserving the rights originally granted. It is true that there were certain orders passed at chambers on dates other than those fixed at a time in the original order, and without being fixed by the judge after notice to both parties. But conceding that at the time when these intermediate orders were passed the court was without jurisdiction of the case, and that for this reason such orders are to be treated as nullities, without force and effect, still it is apparent that under the terms of the order first granted the case was carried into the subsequent term of the court. In the original order granted is the following language: “If for any reason this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter..” This order had the effect of preserving the motion and the rights of the movant until the March term, 1923. On July 14, 1923, “in term time,- the March term, 1923, of said court not having been adjourned,” tlie motion for new trial was regularly called for a hearing. The motion to dismiss, predicated upon the grounds indicated in the statement of facts, was made and urged. But on that day the case was heard, and the defendant presented for approval a proper and correct brief of evidence, introduced at the trial of the case at the September term, 1922, and the judge duly passed an order on that date approving the brief of evidence as “the true and correct brief of evidence adduced at the trial,” and ordered the same filed. That order is in the record. And on that day the brief of evidence, together with the order approving the same and ordering it filed, was filed in the office of the clerk of the court. The hearing of the motion for new trial and the motion to dismiss the same was not concluded on July 14th, but the hearing on both motions was resumed at Nashville on August 11, 1923, “in term time, the March term, 1923, of said court not having been adjourned.” The hearing was not concluded on this last date, but the final hearing was had on October 4, 1923,- in term time, the September term, 1923, not having been adjourned. At the conclusion of the final hearing on each of said motions, that is, the motion for new trial and the motion to dismiss the same, the court did not render a judgment on either, but took them under advisement, and finally, on October' 19, 1923, in term time, during the same term, passed an order sustaining plaintiffs motion to dismiss the motion for new trial.

We are of the opinion that the motion to dismiss should have been overruled, and that the court erred in sustaining the motion to dismiss. The orders which are quoted above in the statement of facts, and again referred to, carried the motion alive into the March term, 1923; and while the motion and the orders there'on were in force, the plaintiff completed the motion in time' and hád duly approved and filed the brief of evidence. Section 6090 of • the Civil Code is in the following language: “Where an order is taken to hear a motion for a new trial in vacation, thé brief of evidence must be presented for approval within the time fixed by the order, or else the motion will be' dismissed. At the time fixfed for the hearing, the judge may finally approve the motion and ‘ brief, with all amendments thereto, and pass on the motion, with the right to either party to except as in term time; but the judge in his discretion, before or at that time, may adjourn the hearing to another date- in vacation, with like power, or until the next term. Where a hearing is adjourned to the next term, the motion stands for hearing in term as if no order had been taken.” In the case of James v. John Flannery Co., 6 Ga. App. 811 (66 S. E. 153), it was said: “Where, by an order duly granted in term time, the hearing of a motion for new trial is set for a date in vacation, and it is provided that ‘the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case, and the presiding judge may enter his approval thereon at any time, either in term or vacation/ and that ‘if for any reason this motion is not -heard and determined 'before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter/ and the hearing is regularly continued several times by consent, during vacation, the motion goes over to the next term, at which .term it would stand for hearing. And unless it be made to appear that the failure to hear the motion or to file a brief of the evidence was the fault of the movant, the motion would stand for hearing at the next succeeding regular term of the court, unless by appropriate order the hearing was set for an earlier date. . . The power of the court to pass appropriate orders in term time is plenary, and an order permitting the filing of the brief of evidence in a motion for new trial at a time subsequent to the next regular term of court is not error, unless it appear that the failure to sooner file the brief was the fault of the movant.” And it was further said in that case: “It will be noted that the language is, ‘the brief of the evidence must be presented within the time fixed by the order.’ In the present ease the order allows the brief to be presented for approval at the hearing, whenever that may be, with the right that the brief may thereafter be filed at any time within ten days after the motion is heard and determined. . . But where, as in the present case, it is expressly provided, under the authority of the court then in session, that the movant shall have until the hearing to prepare and present the brief of evidence, this exercise of the court’s power will continue of full force, at least until withdrawn by an appropriate order. . . There is nothing in the law that would require him to grant an additional order as to any of the incidents or essentials necessary to perfect the motion. Such a motion would be in order for a hearing if complete, but it would still be necessary for the court to complete the motion, and still the right of the movant to rely upon the original provisions of the order in his favor, unless they were withdrawn by the judge in his discretion.”

And in the case of Napier v. Heilker, 115 Ga. 168 (41 S. E. 689), it was said: “The fact that the orders passed at the preceding term of the court had fixed the time during that term for the presentation of a brief of the evidence for approval would not deprive the court of the power to allow a brief of evidence to be filed at a subsequent term. If for any reason a correct brief of the evidence could not be then had, of course the court could refuse to approve it, if it did not come up to the requirements of the law; but the orders passed at the previous term, fixing dates from time to time for a hearing of the motion, would not deprive the court of the power to allow a brief of the evidence to be filed at a subsequent term, if a correct brief could be then obtained, and if an incorrect brief was then tendered, the judge had power in his discretion to allow a reasonable time for the movant to have the brief made correct.” In the case of Mutual Life Insurance Co. v. Hamilton, 119 Ga. 338 (46 S. E. 434), where the order taken was similar to the original order in this case, the court held that the original term order gave the movant in the motion for a new trial until the final hearing thereof to prepare and have approved and filed a brief of the evidence. There were intermediate orders in the Hamilton case. They contained nothing limiting the right of the movant to have a brief of the evidence approved and filed upon the final hearing. They did not limit the right of the movant in respect to the privilege of filing the brief of evidence; and the court held, as we have seen, that under the original order the rights of the movant in this respect were preserved. In the case of Maynard v. Head, 78 Ga. 190 (1 S. E. 273), it was ruled: “It was proper to refuse to dismiss the motion for a new trial in this case. Having been continued and carried regularly to the May adjourned term of the court, it was then properly in court, and the court had full jurisdiction thereof. The order then granted, giving the movant until the final hearing of the motion to prepare and perfect the brief of the evidence, was binding upon the parties; nor was this order vacated because the case was not heard in. vacation at the time set therefor, but it continued of force until the final hearing.” Another case closely in point is that of Brinn v. Mason, 147 Ga. 471 (94 S. E. 563). See also Helmly v. Davis, 111 Ga. 860 (36 S. E. 927); Shockley v. Turnell, 114 Ga. 378 (40 S. E. 279); McPhail v. State, 116 Ga. 599 (42 S. E. 1001). In the case of Lee v. Cox, 15 Ga. App. 249 (82 S. E. 941), it was said: “The court originally passed an order upon the motion for a new trial, allowing the movant funtil the hearing, whenever it may be,5 to prepare and present for the court’s approval a brief of the evidence in the case. There was no 'subsequent action which revoked this order, and for that reason the case is controlled by the ruling of this court in James v. Flannery, 6 Ga. App. 811 (66 S. E. 153), and the court did not err in refusing to dismiss the motion because of failure to prepare a brief of the evidence.” See also Miller v. Thigpen, 121 Ga. 475 (49 S. E. 286), which cites the case of Napier v. Heilker, supra, and in the same connection the case of Eady v. Railroad Co., 129 Ga. 363 (58 S. E. 895).

We are of the opinion that the motion to dismiss the motion for new trial should not have been sustained on any of the grounds. It does not appear that the movant had been guilty of such laches up to the time the case came on for hearing in the March term, 1923, as would work a dismissal of the motion for a new trial. But on the question of laches, though the court sustained this ground apparently by the first order quoted dismissing the case, by a subsequent order passed on the same day, July 14, 1923, of its own motion the court passed a supplementary or amendatory order reciting that the court did not intend to sustain the ground of the motion to dismiss based upon the alleged laches on the part of the movant in the motion for new trial, and therefore modified the first order so as to sustain the motion to dismiss on all the grounds except the ground based on laches. The granting of this supplementary order was excepted to in a cross-bill of exceptions filed by defendant in error. The order modifying the first order was passed not only at the same term, but on the same day at which the original order was granted; and we are of the opinion that it was within the authority of the -court to modify the first order which had been inadvertently made' broader than the court intended; and the judgment of the court excepted to in the cross-bill of exceptions should be affirmed.

A motion was made to dismiss the bill of exceptions on several grounds, among others, upon the ground that the motion for new trial in the present case was heard in vacation, and that the notice to the respondent contemplated in the provisions of section 4853 of the Civil Code was not given as required by the statute contained in the section cited. We are of the opinion that under the recitals in the bill of exceptions the hearing was not in vacation, but in térm time. It is so expressly recited in the bill of exceptions. It is true the court appended this note to the bill of exceptions: “The court, in granting the several orders in the foregoing case, never granted any one of them when the court was in session where the juries were empaneled and the court was running for the purpose of trying cases. Since the judge has been on the bench there has been a custom in the court at Nashville not to adjourn the court by the 'sheriff, or for any adjournment to be entered on the minutes, but the court has been held open, so far as the custom was concerned, for the purpose of filing pleas, etc.; and under this statement of facts the court did hold, on the day the orders were granted, that the court was open. When the court ruled that the court was open, it had this custom in view, and none of the orders were passed during the two weeks that this court is held in September and March.” Taking the recital that the orders were granted in term time, as it appears stated expressly in several places in the bill of exceptions, we do not think that there is anything in the note which requires a finding contrary to these recitals in the bill of exceptions. It is expressly recited that it was in term time, and that the March term had not been adjourned. -“After a general term of the superior court has been organized by the presiding judge and put into operation, the term continues until finally adjourned by the presiding judge or by the operation of some provision of law.” Liverpool Insurance Co. v. Peoples Bank, 143 Ga. 355, 358 (85 S. E. 114); Braxley v. State, 143 Ga. 658 (85 S. E. 888). See also the case of King v. Sears, 91 Ga. 577 (18 S. E. 830).

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

All the Justices concur.