Opinion
37643.
DECIDED MAY 12, 1959.
Appellate procedure. DeKalb Civil Court. Before Judge Mitchell. February 5, 1959.
Wilson, Branch Barwick, M. Cook Barwick, J. Frank Ogletree, Jr., for plaintiffs in error.
M. M. Armistead, contra.
A writ of error assigning error on the denial of a motion for a new trial is premature where a motion for a judgment notwithstanding the verdict is still pending in the court below.
DECIDED MAY 12, 1959.
1. A writ of error assigning error on the denial of a motion for a new trial is premature where a motion for a judgment notwithstanding the verdict is still pending in the court below. This is the fact in the case and the writ of error must be dismissed. Fulton v. Chattanooga Pub. Co., 98 Ga. App. 473 ( 105 S.E.2d 922). The act of 1957 (Ga. L. 1957, pp. 224, 230; Code, Ann., § 6-701) does not authorize this court to rule on the question presented for the reason that no writ of error is permissible unless there is a final judgment or one that would have been final if made as contended by the appealing party. Neither is true in this case.
2. This court is without jurisdiction to make an authoritative ruling in this case to guide the trial court in its future conduct of the case. However, to facilitate the disposition of this case and to possibly obviate the necessity of further appeal this court may suggest certain matters to the above end which it would seem are not officious or presumptuous under the circumstances. The trial judge overruled the motion for a new trial because the evidence in the case was not reported and there was no agreement as to the brief of evidence by the attorneys for the plaintiff and the defendants. It is suggested that the trial judge was without jurisdiction to rule on the merits of the motion for a new trial since there was not at the time of his ruling an approved brief of the evidence, so that if the judge by whatever means are in his power does approve a brief of the evidence, he will be justified in ruling on the merits of the motions pending before him. For rulings on the duties of a trial judge as to approval or nonapproval of a brief of the evidence see: Delpheon Co. v. Crankshaw, 25 Ga. App. 672 ( 104 S.E. 455); Price v. High Co., 108 Ga. 145 ( 33 S.E. 956); Wyatt v. State, 13 Ga. App. 672 ( 79 S.E. 748); McConnell v. State, 8 Ga. App. 394 ( 69 S.E. 120); Tompkins v. Hardison, 31 Ga. App. 276 ( 120 S.E. 556).
Writ of error dismissed. Quillian and Nichols, JJ., concur.