Smith v. Exchange Bank

89 S.E. 209, 145 Ga. 310, 1916 Ga. LEXIS 292

• Court: Supreme Court of Georgia
• Decided: June 14, 1916
• Status: Published

Opinion

Hill, J.

A verdict was rendered on October 26, 1914. A motion for a new trial was presented and a rule nisi granted on the 23d day of November, 1914, which was returnable on December 21, 1914; and the order directed that the rule nisi should be served. This order contained the following, among other provisions: “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.” The case was not heard on the 21st of December, and during the January term, 1915, on January 12th, the motion was called up by the adverse party and a motion made to dismiss it for want of service. The motion was granted on this ground, and also because no brief of the evidence had been filed.

' It was stated in the bill of exceptions that there was no entry of service, acknowledgment of service, or claim that the motion had been served, nor does it appear that any reason was shown why service had not been made. Held, that there was no error in dismissing the motion for a new trial because of failure to serve the rule nisi. See Civil Code, § 6080; McMullen v. Citizens Bank, 123 Ga. 400 (51 S. E. 342).

(a) It having been held in the preceding headnote that it was not erroneous to dismiss the motion for a new trial for failure to serve the rule nisi, it is unnecessary to pass on the additional ground stated in the order, that no brief of evidence had been filed, or on the question whether the application for additional time to file such brief should have been allowed had there been proper service of the rule nisi.

(b) The provision in the order, that “If for any reason said motion is not heard and determined at the time and place above fixed, it is ordered that the same shall be heard and determined at such time and place in vacation as counsel may agree upon; and upon failure to agree, then at such time and place as the presiding judge may fix on the application of either party, of which time and place the opposite party shall have at least five days’ notice,” had reference to a hearing in vacation, and not to one in term time.

June 14, 1916.

Motion for new trial. Before Judge Wright. Floyd, superior court. January 12, 1915.

M. B. Eubanks, for plaintiff in error. Lipscomb & Willingham and Nathan Nanis, contra.

Judgment affirmed.

All the Justices concur.