Opinion
33074.
DECIDED NOVEMBER 2, 1950.
Complaint; from Fulton Civil Court — Judge Quincy O. Arnold. January 24, 1950.
N. T. Anderson Jr., for plaintiffs.
R. B. Lambert, for defendant.
Where, during the term at which a case is tried, a motion for a new trial is made, and under proper order set for hearing upon a named date in vacation, and the order grants the movant until the named date and the hearing within which to perfect and file the brief of evidence, the judge, sitting at chambers, upon the day appointed for the hearing, has full possession of the matter, and may adjourn the hearing until a subsequent date and give the movant until that time to complete the motion and file the brief of evidence; and, at such adjourned hearing, the judge may again continue the case until a future date and give the movant until that time to complete the motion and file the brief, and may continue to pass such successive orders as in his discretion he thinks necessary. Dorsey v. Central of Georgia Ry. Co., 113 Ga. 564 ( 38 S.E. 958); Stone v. Taylor, 63 Ga. 309; Cotton v. Slaughter, 69 Ga. 735; Herz v. Frank, 104 Ga. 638 ( 30 S.E. 797); Bates v. British American Assurance Co., 100 Ga. 249 ( 28 S.E. 155), and cit. The granting or refusing of further time within which to perfect the motion and file the brief of evidence is a matter in the discretion of the judge ( Burroughs v. Bank of Ila, 174 Ga. 35 (1), 161 S.E. 815); nor has this court any lawful power or authority to control the discretion of the trial courts in the legitimate exercise of their discretion in conducting the business before them, unless that discretion has been abused, or some law of the land violated. Mayor c. of Cuthbert v. Brooks, 49 Ga. 179. Consequently, where upon a motion for a continuance of the hearing on the motion for a new trial, on the ground that the movants "have been unable to get the brief of evidence prepared to date of hearing," the trial court enters an order thereon that, "since a brief of evidence has not been prepared to the time of this hearing, this court is unable to continue the case to allow further time to file brief of evidence and the . . motion [to continue] is therefore denied" — this court will presume that the court below had good and sufficient grounds for refusing the postponement of the hearing of the motion for a new trial as it did, and will not interfere with this exercise of discretion, in the absence of a showing of abuse; and there being no brief of evidence filed on the day appointed in the term order, the motion for a new trial was properly dismissed. Bull Son v. Armour Fertilizer Works, 26 Ga. App. 151 ( 105 S.E. 616), and cit. The court did not err in refusing to postpone the hearing of the motion for a new trial to allow further time to perfect and file the brief of evidence, nor in dismissing the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.
DECIDED NOVEMBER 2, 1950.
D. J. Digsby and Mrs. D. J. Digsby brought an action under the Housing and Rent Act of 1947, as amended, against Mrs. M. L. Johnson, seeking to recover for an alleged overcharge in rent. The defendant filed her plea and answer in the nature of a cross-action to recover past-due rent and the amount of a loan which she had made to the plaintiffs. Upon the trial of the case before the judge without a jury, judgment was rendered in favor of the defendant (Mrs. Johnson) in the main action and in favor of the plaintiff (Mrs. Johnson) in the cross-action. The Digsbys, being dissatisfied with this judgment rendered on December 12, 1949, filed, on December 30, their motion for a new trial and the trial judge entered the following order thereon: ". . It is ordered that the defendant show cause before me, at my court room, room 805 of the Fulton County Court House, Atlanta, Georgia, at 2:00 o'clock, p. m. on the 24th day of January, 1950, why the foregoing motion should not be granted. It is further ordered that the defendant or her attorney be served with copy of this motion and order. The time for filing the brief of evidence is hereby extended until the 24th day of January, 1950, and said hearing." On January 24, 1950, the day set for the hearing of the motion, the plaintiffs made the following motion: "The plaintiffs in said case hereby move for a continuance of the hearing on the motion for a new trial in this case upon the ground that they have been unable to get the brief of evidence prepared to date of hearing as heretofore set." On this motion to continue the court entered the following order: "Since a brief of evidence has not been prepared to the time of this hearing this court is unable to continue the case to allow further time to file brief of evidence and the foregoing motion is therefore hereby denied." Thereafter on the same day the court entered the following order on the motion for a new trial: "The within motion for a new trial coming on regularly to be heard and it appearing to the court that no brief of evidence having been filed as required by law and that the trial court had no jurisdiction to entertain the motion for a new trial, the said motion is hereby dismissed." In their bill of exceptions before this court, the plaintiffs assign error upon the denial of the motion for continuance and the dismissal of the motion for a new trial.