Opinion
37514, 37515, 37516, 37517.
DECIDED FEBRUARY 27, 1959.
Motion for new trial. Savannah City Court. Before Judge Alexander. September 26, 1958.
Hitch, Miller Beckmann, Luhr G. C. Beckmann, Jr., for plaintiff in error.
James W. Head, Anton F. Solms, Jr., contra.
Where a definite time in vacation is set either by a term order or by operation of law for the filing of a brief of evidence in a motion for a new trial, that time cannot be extended by a vacation order. Since the brief of evidence was not filed within the time prescribed by law or by the time set in the term order, the court erred in denying the motion to dismiss the motion for new trial.
DECIDED FEBRUARY 27, 1959.
These cases were tried together and the principle of law involved on this appeal is the same in both cases, and in the treatment of the cases, we will speak in the singular.
Since a consideration of the cross-bills of exception in both cases will finally dispose of the cases, we will rule only on such cross-bills.
On June 10, 1958, the defendant in error filed a motion for a new trial on the general grounds. On that date a rule nisi prepared by the attorneys for the defendant in error was signed by the trial judge. The rule was as follows: "The above and foregoing motion having been presented to the court within the time prescribed by law and at the same term of court at which the verdict complained of was rendered, it is ordered that the plaintiff and/or his attorneys of record be served and show cause before this court on the 11th day of July 1958 at 3 p. m. why the prayers of said motion should not be granted and a new trial had therein. Defendant's rights in the premises are hereby reserved and in particular, but not limited to, defendant shall hereinafter have the right to file on his behalf a brief of the evidence and charge of the court and also file on his behalf an amended motion for new trial. If, for any reason, hearing on this motion is not heard on the date hereinabove indicated, then the same shall be continued from date to day thereafter until the same is heard by this honorable court. This 10th day of June, 1958."
On July 10, 1958, on motion of the defendant in error the trial court signed the following order: "The defendant having made motion for new trial in said case on the grounds therein stated, which motion was to be heard before this honorable court on the 11th day of July, 1958 at 3 p. m., and it appearing that it is impossible to make out and complete a brief of the testimony in said case in time to be heard, it is ordered by the court that said motion be continued until the 15th day of August, 1958 at 3 p. m., at which time it will be heard and determined. Movant may amend said motion at any time before the final hearing; and further, this order shall act as a supersedeas until further order of the court."
On July 11, 1958, the date originally set in the rule nisi for the hearing of the motion for a new trial, the plaintiff in error filed the following written motion to dismiss the motion for a new trial: "1. Now comes plaintiff, William M. Donaldson, and moves that the court dismiss the motion for new trial of defendant, Harvey T. Smoot, in the above stated case on the ground that no order was granted by the court allowing the defendant movant beyond the term in which to perfect a brief of evidence and defendant has not filed a brief of evidence in the above stated case during the term and before the adjournment of the May term of court. 2. Now comes plaintiff, William M. Donaldson, and moves that the court dismiss the motion for new trial of defendant, Harvey T. Smoot, in the above stated case on the ground that no order was granted in the May term of court or within thirty days from the date of verdict, June 6, 1958, allowing the defendant beyond thirty days in which to perfect their brief of evidence in the above stated case and defendant has not filed a brief of evidence in the above stated case during the thirty-day period following said verdict on June 6, 1958. Wherefore, plaintiff William M. Donaldson prays that these motions be sustained and the motion for new trial of defendant be dismissed."
On September 26, 1958, the trial court passed the following order denying the motion of the plaintiff in error to dismiss the motion for a new trial: "this motion was filed on July 11, 1958, to dismiss defendant's motion for new trial upon two grounds. The first ground complains that no order was granted by the court allowing the defendant movant beyond the term of court in which to perfect a brief of evidence, and the defendant had not filed a brief of evidence in this case during and before the adjournment of the May 1958 term of the city court. The second ground complains that no order was granted at the May 1958 term of court or within thirty (30) days from the date of the verdict, June 6, 1958, allowing the defendant beyond thirty (30) days in which to perfect his brief of evidence, and that no brief of evidence was filed during the thirty (30) days period from June 6, 1958. These grounds appear to the trial court to have some merit and have been given serious consideration. But inasmuch as the defendant followed a procedure that seems to have prevailed in such cases, the motion to dismiss defendant's motion for new trial is therefore overruled upon each and all of the grounds thereof."
To this judgment the plaintiff in error in the cross-bill excepts.
Where a motion for a new trial requires for its consideration a brief of evidence and no brief of evidence is filed in time, the motion should be dismissed. Nichols Contracting Co. v. Allen, 42 Ga. App. 306 ( 155 S.E. 770). Where a motion for a new trial is filed during term time and the rule nisi ordered during the term sets a time for hearing in vacation and allows the movant until the "final hearing" or the "hearing, whenever it may be" or words of similar import, the movant has until the hearing to file the brief of evidence and a continuance of the hearing whether by order or by operation of law also extends the time for the filing of the brief. Wilson v. Van Gundy, 83 Ga. App. 566 (2) ( 64 S.E.2d 292); Azar v. Thuma, 207 Ga. 444 (1) ( 62 S.E.2d 166). In the order in the instant cases the movant was not given until the "final hearing" or until the "hearing, whenever it may be" within which to file the brief of evidence, nor can the order be construed as having that effect. The trial court did not so construe the order. His order stated that he was denying the motion to dismiss because the action taken seemed to be a procedure that had prevailed in his court. The most liberal construction of the rule nisi favorable to the movant that can be placed thereon was that the movant had until July 11, 1958 to file the brief of evidence. Where a definite time in vacation is set, either by a term order or by operation of law, for the filing of the brief of evidence, that time cannot be extended by a vacation order. Reed v. Warnock, 146 Ga. 483 (1) ( 91 S.E. 545).
Since the brief of evidence was not filed within the time prescribed by law or by the time set in the term order, the court erred in overruling the motion to dismiss the motion for a new trial. Wilson v. Van Gundy, 83 Ga. App. 566 (1), supra.
The main bills of exception are dismissed.
Judgments reversed on cross-bills of exception. Quillian and Nichols, JJ., concur.