Security Insurance v. Jackson

151 S.E. 410, 40 Ga. App. 688, 1929 Ga. App. LEXIS 713

Opinion

Broyles, 0. J.

1. “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 [during that term], 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 [upon its hearing in vacation or at a subsequent term]. These requirements are jurisdictional.” Garraux v. Ross, 150 Ga. 645 (104 S. E. 907), and cit.

2. Under the above-stated ruling- and the facts of the instant case, the court erred in overruling- the motion to dismiss the motion for a new trial; and the cross-bill of exceptions, assigning error on that judgment, is meritorious. In each of the casos cited in the brief of counsel for the defendant in error in the cross-bill of exceptions, in which it was held that the dismissal of the motion for a new trial was within the discretion of the court, there was an order of court extending- the time for filing- the brief of the evidence. Under the facts here, no brief of the evidence having been filed during- the proper term, and no order taken for an extension of tlie time of filing, no valid motion for a new trial was pending (Verner v. Gann, 144 Ga. 843, 88 S. E. 204), and the court liad no discretion in tlie matter.

Decided December 10, 1929. Rehearing denied January 14, 1930. George B. Rush, for plaintiff in error. Etheridge, Peck & Etheridge, Hewitt W. Chambers, contra.

Judgment reversed on the w'oss-bill of exceptionsj main bill of exceptions (dismissed.

Luke and Blood/ioorth, JJ., concur.