Perry v. Gammage

99 S.E. 141, 23 Ga. App. 583, 1919 Ga. App. LEXIS 228

• Court: Court of Appeals of Georgia
• Decided: April 17, 1919
• Docket: 10054
• Status: Published

Opinion

Jenkins, J.

Where a motion for a new trial is filed during the term of the trial and an order is then entered setting down the hearing of the motion for a named day in vacation, that day, relatively to the hearing of the motion, is in legal contemplation a continuance of the term at which the order was entered. When that day arrives the court has jurisdiction to hear the motiqn, but if it is not then either heard on its merits or dismissed, it must by express written order be continued to some subsequent day, or else it will go over to the next succeeding term of the court in which it was .made, unless it be in the meantime disposed of under the provisions of the Civil Code (1910), §§ 4852, 4853. Perry v. State, 12 Ga. App. 573 (77 S. E. 879) ; Moore v. Citizens Bank, 19 Ga. App. 593 (91 S. E. 932). See also Cozart’s Georgia Practice Pules, 76, § 208, citing Broadway National Bank v. Kendrick, 130 Ga. 382 (60 S. E. 998). The mere oral announcement of a continuance by the court, made on the day set for the hearing in vacation, even though verbally assented to by counsel, .will not keep the court -thereafter open for further proceedings upon the motion. Atlanta &c. Ry. Co. v. Strickland, 114 Ga: 998 (41 S. E. 501). The motion in this ease is therefore still pending in the court below, undisposed of by any valid judgment.

Decided April 17, 1919.

Garnishment; from city court of Americus—Judge-Harper. July 26, 1918. -

L. J. Blalock, for plaintiff in error. R. L. Maynard, contra.

Judgment reversed.

Wade, C. J., and Luke, J., concur.