Nichols Contracting Co. v. Allen

155 S.E. 770, 42 Ga. App. 306, 1930 Ga. App. LEXIS 376

Opinion

Jenkins, P. J.

1. A brief of the evidence is essential to the validity of a motion for new trial. Moxley v. Georgia Ry. & El. Co., 122 Ga. 493 (50 S. E. 339).

2. “The general rule is that a motion for new trial, which includes a brief of the evidence, must be made during the term at which the trial was had; and where a motion for new trial is made in term, and no brief of the evidence is filed, and no order of court is taken extending the time at which the brief of evidence may be filed, it is proper to dismiss the motion. These requirements are jurisdictional.” Garraux v. Ross, 150 Ga. 645, 648 (104 S. E. 907). The court can not, after the adjournment of the term, pass a valid order extending the time witliin which a brief of the evidence may be filed. Reed v. Warnock, 146 Ga. 483 (91 S. E. 545). Nor could the court, in vacation, and on the date set for a hearing of the motion for new trial, by approving a brief of the evidence previously agreed upon by counsel and ordering it filed, give life to the motion rendered invalid by reason of the failure of the movant to file with it a brief of the evidence, or obtain from the court an extension of time within which to file such brief.

3. In the instant case, where the motion for new trial was filed before adjournment of the term, but was not accompanied by a brief of the evidence, and no order was taken extending the time within which a brief of the evidence might be filed, the court did not err, upon the hearing of the motion in vacation, pursuant to the order passed in term setting it for hearing, in dismissing the motion for a new trial. And this is true even though the mova.nt, upon the hearing, presented a brief of the evidence which had been agreed upon by counsel, and which was approved by the court and ordered filed.

Judgment affirmed.

Stephens and Bell, JJ., concur.