Opinion
37293.
DECIDED SEPTEMBER 15, 1958.
Tort; automobile and truck collision. Jefferson City Court. Before Judge Stark. May 31, 1958.
Raymond F. Schuder, Wheeler, Robinson Thurmond, for plaintiff in error.
H. W. Davis, Jack S. Davidson, contra.
Except where a "brief of evidence" is not required in connection with a motion for new trial (Ga. L. 1947, p. 298; Code, Ann., § 70-301.1), a motion which seeks a new trial without a "brief of evidence" is a nullity, and should be dismissed when attacked because of such deficiency.
DECIDED SEPTEMBER 15, 1958.
Mary D. Satterfield sued Frank Fricks to recover for injuries and damages sustained in a collision between the plaintiff's automobile and the defendant's truck. The jury returned a verdict for the plaintiff and the defendant filed a motion for new trial on the general grounds only. The plaintiff moved to dismiss the purported motion for new trial because no brief of the evidence adduced on the trial had been approved by the trial court, or tendered, served, or filed by the defendant. Thereafter the trial court rendered a judgment denying the plaintiff's motion to dismiss the motion for new trial and finally rendered a judgment granting the defendant's motion for a new trial. The plaintiff now excepts to these judgments adverse to her.
The judgment of the trial court denying the plaintiff's motion to dismiss the defendant's motion for new trial was as follows: "The above motion being presented this the 31st day of May, 1958. The above motion is overruled for the reason that during the progress of the trial the judge giving the charge being myself was attacked with acute [laryngitis] and completely lost my voice and the machine taking the evidence could not pick up the charge. Neither could the jury hear it and due to these facts no brief of evidence could be prepared by movant and represented as required in such cases. It being impossible to present a brief of evidence when no possible record of the charge could be obtained."
The sole question here for decision is whether, under the above circumstances, the movant for a new trial was relieved from preparing a brief of the evidence. If not, of course the motion to dismiss the motion for a new trial should have been sustained, while if the movant is so relieved, then the first grant of a new trial will not be disturbed where the record does not disclose that the verdict was demanded.
"The order attempting to grant the motion for new trial was void because, in the absence of a brief of evidence, there was no motion for new trial in existence. Fireman's Insurance Co. v. Oliver, 176 Ga. 80 ( 167 S.E. 99); Stowers v. Harris, 194 Ga. 636 (5), ( 22 S.E.2d 405)." Foster v. Jones, 208 Ga. 320, 322 ( 66 S.E.2d 743).
In Oliver v. Fireman's Ins. Co., 42 Ga. App. 99 ( 155 S.E. 227), it was held that a motion which was in effect a motion for new trial but which was not accompanied by a brief of evidence was fatally defective and a ground of demurrer raising this point should have been sustained.
"A brief of evidence is essential to the validity of a motion for a new trial (Code, § 70-301; Herb v. Wolfe, 75 Ga. App. 20 (2), 41 S.E.2d 817; Dobbs v. Sims, 74 Ga. App. 1, 38 S.E.2d 680); and as the statute is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official reporter has written out his report of the evidence or not ( Vinson v. State, 53 Ga. App. 224, 185 S.E. 529); . . ." Smith v. State, 86 Ga. App. 703 ( 72 S.E.2d 462).
While the trial court may know that a verdict contrary to the verdict of the jury was demanded by the evidence, and that (because of no fault of the movant for a new trial), it is impossible to prepare a "brief of evidence," still, unless there is a brief of the evidence there can be no valid motion for a new trial which is based on the usual general grounds only; and where, as here, there is a motion to dismiss such purported motion for new trial on the ground that there is no brief of the evidence it is error to fail to sustain such motion, and the further judgment granting the new trial is a nullity.
Judgment reversed. Felton, C. J., and Quillian, J., concur.