Milner v. Burrus

Bleckley, Chief Justice. The case was tried at the May term, 1887, and resulted in a verdict for the claimant. A motion for a new trial was made by the losing party, and by order of court the movant was allowed till the next term to complete a brief of evidence, and it was completed accordingly, but not then presented to the judge for revision and approval. Nor was it so presented until the second term thereafter, up to which time the motion liad been regulai-ly continued, once at the suggestion of the court itself. As the continuances had been regular, no doubt it was in the- power, legally speaking, of the judge to revise and approve the brief of evidence, although it had been withheld from his inspection for so long a time after the trial and until so late a period in the pendency of the motion. But we know of no law which obliged him to exercise this power. In order to revise the brief and guarantee its correctness, ho was entitled to have it presented whilst the evidence as given at the trial had some freshness in his recollection. No doubt it was because this freshness had been lost that he declined to approve the brief after so long an interval had elapsed, not ouly after the trial, but after the 644 term of court at which the brief was actually completed. The delay in presenting it is wholly without explanation. The record exhibits no fact tending to justify or offered as a justification, nor does the judge disclose the particular reason of his refusal to approve the brief; but as we can divine a good and sufficient reason by merely recognizing the natural law of memory by which its distinctness and certainty of past impressions frequently fade out-with the lapse of time,-it is due that we should give him credit for acting under the influence of that reason or some other equally good, and we do so accordingly. "Without noticing any other ground embraced in the motion to dismiss the motion for a new trial, we hold that the order of dismissal was justified by the one ground that the brief of evidence had not been approved. Pease v. Pease, 66 Ga. 277, cited in Moxley v. Kinloch, 80 Ga. 47. Judgment affirmed.