Summary
In Toney v. Webb, 76 Ga. App. 473 (46 S.E.2d 355) the court said: "`... where a motion for a new trial is made in term and no brief of the evidence is filed, and no order of court is taken extending the time at which the brief of evidence may be filed, it is proper to dismiss the motion.
Summary of this case from Williamson v. StateOpinion
31845.
DECIDED JANUARY 28, 1948. REHEARING DENIED FEBRUARY 14, 1948.
Dismissal of motion for new trial; from Fulton Superior Court — Judge Almand. October 20, 1947.
C. G. Battle, D. B. Phillips, for plaintiffs in error.
Martin McFarland, Walter G. Cooper, contra.
1. "A motion for a new trial, which includes a brief of the evidence, must be made during the term at which the trial was had. And where a motion for a new trial is made in term and no brief of the evidence is filed, and no order of court is taken extending the time at which the brief of evidence may be filed, it is proper to dismiss the motion." Reed v. Warnock, 146 Ga. 483 (1) ( 91 S.E. 545). And where, after the expiration of 30 days, neither a brief of the evidence has been filed nor an order taken stipulating for filing one at a later time, the incomplete motion no longer legally pends and no subsequent order of the court can give it vitality. Taliaferro v. Columbus R. Co., 130 Ga. 570, 572 ( 61 S.E. 228). See Code, §§ 70-301, 70-302; West v. Smith, 90 Ga. 284 ( 15 S.E. 912), Barnes v. Macon Northern R. Co., 105 Ga. 495 ( 30 S.E. 883), Pinnebad v. Pinnebad, 129 Ga. 267 (1) ( 58 S.E. 879), Verner v. Gann, 144 Ga. 843 ( 88 S.E. 206), Garraux v. Ross, 150 Ga. 645 ( 104 S.E. 907), and Albritton v. Tygart, 9 Ga. App. 361 ( 71 S.E. 512).
2. The court did not err in dismissing the motion for new trial.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.