Opinion
36874.
DECIDED OCTOBER 17, 1957.
Procedure; motion for new trial, etc. Before Judge Anderson. Columbia Superior Court. July 15, 1957.
Stevens Stevens, for plaintiffs in error.
Randall Evans, Jr., contra.
It is essential for the validity of a motion for new trial that it be filed in the clerk's office and until it is so filed it is a mere private paper. Acknowledgment of service of such a private paper, purporting to be a motion for new trial is a mere nullity.
DECIDED OCTOBER 17, 1957.
John W. McNair brought an action for damages against Atlantic Coast Line Railroad Company and Louisville Nashville Railroad Company.
On the trial the jury returned a verdict for the plaintiff. Counsel for the defendant then mailed to the trial judge a motion for new trial and the judge entered the following order. "Read and considered. It is ordered that the plaintiff show cause before me, at my office in S. F. C. Bldg., Augusta, Ga., at 10:30 o'clock, on the 27th day of June, 1957 why the foregoing motion should not be granted. It is further ordered that the plaintiff be served with a copy of this motion and order; and that this order act as a supersedeas until the further order of the court. This 2nd day of April, 1957."
The judge mailed the motion for new trial with the order to counsel for the defendant. Counsel for the defendant presented a copy of the motion for new trial and the order to the plaintiff's counsel. In acknowledging service counsel for the plaintiff struck from the printed acknowledgment the words "due and legal" and "time, copy, and all other and further service waived." This left the acknowledgment of service which read: "Service of the within motion and order acknowledged. This 4th day of April, 1957." The motion for new trial was filed in the clerk's office on the 6th day of April, 1957.
On the hearing of the motion for new trial the plaintiff's counsel made a motion to dismiss it, which as stated in the bill of exceptions was as follows: "that the motion for new trial and the order nisi was not served as required by law and the court's order after the filing thereof, and that neither of them had been served as required by law after the filing thereof, nor had he waived filing thereof, and that plaintiff had not acknowledged service thereof, nor had he waived service thereof, nor had he waived `due and legal service' thereof, nor had he waived `time, copy, and all other and further service', but that the words `due and legal' and the words `time, copy and all other and further service waived' were omitted from the acknowledgment which plaintiff's counsel executed, and that the paper served was nothing more than a copy of an unfiled paper, and was therefore not a copy of a legal motion for new trial and order nisi because it had not been filed with the Clerk of the Superior Court of Columbia County, Georgia prior to service and acknowledgment of plaintiff's counsel." The trial judge entered a judgment dismissing the motion for new trial and the defendant excepted.
Code § 70-306 requires that the opposite party in all applications for new trial must be served with a copy of the rule nisi, unless such service is waived.
It is essential for the validity of a motion for new trial that it be filed in the clerk's office, and until it is so filed it is a mere private paper. Acknowledgment of service of such a private paper, purporting to be a motion for new trial is a mere nullity. Hilt v. Young, 116 Ga. 708 ( 43 S.E. 76); Shirley v. Morgan, 170 Ga. 324 ( 152 S.E. 831); United States Fidelity c. Co. v. First Nat. Bank of Cornelia, 149 Ga. 132 (1a) ( 99 S.E. 529).
In the present case, the acknowledgment of service being two days prior to the filing of the motion for new trial, service as required by Code § 70-306 was not perfected.
This brings us to the question of whether counsel for the plaintiff waived the required service by his acknowledgment of April 4, 1957. In Trammell v. Throgmorton, 210 Ga. 659 ( 82 S.E.2d 140) an acknowledgment which read: "Due and legal service of the within motion and order acknowledged; copy received. This the 16 day of October, 1952," was held to constitute a waiver of further service. In that case the court based its decision on that part of the acknowledgment which read: "due and legal service of the within motion and order acknowledged." In the present case the acknowledgment of service signed by counsel for the plaintiff did not state that it was "due and legal", and the required service was not waived.
The trial judge did not err in dismissing the motion for new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.