Town of Fairburn v. Brantley

130 S.E. 67, 161 Ga. 199, 1925 Ga. LEXIS 325

• Court: Supreme Court of Georgia
• Decided: October 14, 1925
• Docket: No. 4851
• Status: Published

Opinion

Gilbert, J.

1. “The general rule is that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment.” Barnett v. Strain, 153 Ga. 43 (111 S. E. 574). Under this rule the supersedeas, during its pendency, prevents any steps to enforce or carry into effect the judgment, such as issuing an execution based thereon. 3 O. J. 1319, § 1448.

No. 4851. October 14, 1925.

2. A motion for a new trial duly filed does not become automatically void because of failure to serve the respondent. The latter may waive service. Civil Code (1910), § 6080. “A person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest.” Civil Code (1910), § 10. Augusta Ry. Co. v. Andrews, 89 Ga. 653 (16 S. E. 203). “Any point of practice which, if sound, would be fatal to a motion for a new trial should be presented to the trial court by a motion to dismiss the application for a new trial, and, if not so presented, will be considered as having been waived.” Walker v. Neil, 117 Ga. 733 (45 S. E. 387); Hopkins v. Jackson, 147 Ga. 821, 822 (95 S. E. 675). A person is entitled to legal service, but may waive service of the original suit by appearing and pleading to the merits. Failure to serve a motion for new trial will afford ground upon which the motion must be dismissed, but the failure may be waived. Until such motion is actually dismissed it is not void, and a supersedeas contained therein is of full force and effect.

3. The Town of Fairburn, against whom the judgment was rendered, having made and duly filed a motion for new trial and obtained an order from the court superseding the judgment, and a rule nisi requiring the plaintiff to show cause why a new trial should not be granted, will not be heard to say that, because movant failed to cause the respondent to be served with the motion, said motion and the supersedeas was void ab initio, or that the same became void on and after the date set for the hearing of the motion. Notwithstanding the failure to serve the motion, the supersedeas remained of force until the motion was dismissed.

4. The above rulings are controlling on all of the issues in the ease. The court did not err in granting mandamus absolute.

Judgment affirmed.

All the Justices concur. Atkinson, J., concurs in the result. L. S. Gamp, for plaintiff in error. J. F. Golightly, contra.