Opinion
38283.
DECIDED MAY 20, 1960. REHEARING DENIED JUNE 2, 1960.
Appellate procedure. Brantley Superior Court. Before Judge Roddenberry. January 26, 1960.
Albert A. Roberts, for plaintiff in error.
Dewey Hayes, Solicitor-General, contra.
1. The law prescribes that all applications for a new trial shall be filed within 30 days of the rendition of the verdict, together with the brief of the evidence. Code (Ann.) § 70-301. 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.' 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 authorizing the filing of 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)." Under the holding of the Toney case the writ of error, upon the motion of the solicitor-general, must be dismissed.
2. The defendant attempted to combine an appeal in one bill of exceptions from the overruling of three separate motions for a new trial. There is no provision of law for such procedure. Dickey v. State, 101 Ga. 572 ( 28 S.E. 980); Johnson v. Lock, 35 Ga. App. 587 ( 134 S.E. 197); Holtzendorf v. State, 78 Ga. App. 801 ( 52 S.E.2d 624); Stephenson v. Futch, 213 Ga. 247 ( 98 S.E.2d 374).
Writ of error dismissed. Gardner, P. J., Townsend and Carlisle, JJ., concur.
DECIDED MAY 20, 1960 — REHEARING DENIED JUNE 2, 1960.
Three separate indictments, bearing Numbers 1640, 1641, and 1643, respectively, charging the plaintiff in error with motor vehicle larceny, were returned by the grand jury of Brantley County, September term, 1959, Brantley Superior Court. In one jury trial (the three named cases having been tried together by agreement of the defendant, his counsel and the solicitor-general) a verdict of guilty was rendered in each case, and the trial judge pronounced sentence against the defendant in each case in accordance with the verdict. The defendant filed a motion for a new trial in each case. The motion for a new trial in each case was overruled and denied on January 26, 1960, and the defendant by one bill of exceptions complains of the overruling and denial of the three motions for a new trial aforesaid.
The rule nisi granted on each motion for a new trial is identical, to wit: "The within and foregoing motion for a new trial having been read and considered let the same be filed, let the solicitor-general be served and let the solicitor-general show cause before me on the 24th day of Nov., 1959, at the courthouse in Waycross, Georgia at 10 o'clock why the within and foregoing motion for new trial should not be granted." The record is silent as to any continuance or extension of time which the defendant had to file an approved brief of the evidence. Also, there is no order for continuance of the hearing beyond November 24, 1959. The purported brief of evidence was filed on January 2, 1960.