Miller v. Thigpen

49 S.E. 286, 121 Ga. 475, 1904 Ga. LEXIS 204

• Court: Supreme Court of Georgia
• Decided: December 12, 1904
• Status: Published

Opinion

Cobb, J.

The record discloses that the rule nisi and original order were granted in term, and that the order of August 31 was .granted in vacation. It does not appear whether the other orders were in term or vacation. If these intervening orders were all in term, the effect of the failure to present for approval a brief of the evidence on August 22 would not result in a dismissal of ’the motion for a new trial, but would simply carry it over to the next term undisposed of, to be then dealt with in conformity to law. If, on the other hand, these orders were in vacation, the failure of the judge to take any action on the motion by written order on July 9 would carry the motion undisposed of into the next term, and would deprive the judge of jurisdiction to deal in any .way with the motion prior to that time. In either event the court was without jurisdiction .to pass any order in reference to the motion on August 31 in vacation. The order purporting to dismiss the motion was therefore an erroneous order, and the judgment must be reversed. The motion stands on the docket undisposed of, to be dealt with by the judge when called in its order during term. See Atlanta, K. & N. Ry. Co. v. Strickland, 114 Ga. 998; Napier v. Heilker, 115 Ga. 168.

Judgment reversed.

All the Justices concur.