Gentry v. McBride

Beck, J. This case was tried at the January term, 1906, of Haralson superior court, and a verdict in favor of the plaintiff was found. Thereupon the defendants, during the term, filed a motion for a new trial, 'a rule nisi being issued and made returnable to' the July term, 1906. At the same time an order was passed in which it was provided that “movants have until the final hearing of this motion, whenever it may be, to prepare and file a brief of the evidence in said case; and the presiding judge may enter his approval thereon at any time, either in term or vacation.” Nothing further wasffione in regard to said motion until the January term, 1907, of the court. In the meantime, on the 31st day of December, 1906, the term of office of the judge who tried the case expired, and Judge Freeman, of the superior courts of the Coweta circuit, presiding at the last-mentioned term of Haralson superior court, passed an order setting the hearing of said motion before himself, on April 12, 1907; and on this date the hearing of said motion was continued by written order until April 19, 1907, and then, when said motion came on for hearing, counsel for movants presented for approval by the judge “what'he claimed was a brief of the evidence in said case, which had been filed in the office of the clerk of the superior court of Haralson county, on April 11, 1907.” Upon presentation of the alleged brief, it being contended by counsel for respondent that the same was incorrect and imperfect, affidavits and oral evidence were submitted as to- whether the brief presented was correct or not. The evidence adduced upon the question as to the' completeness and correctness of the brief of evidence was conflicting; and the judge hearing the motion passed an [208] order refusing to approve the brief of evidence and dismissing the motion for a new trial, reciting in his order that “On account of the laches of movant in failing to have his brief approved by the presiding judge, and because I am unable to say whether the brief presented is or is not correct, I can not approve same or certify as to the amended motion.” We are of the opinion that under the facts and circumstances of the case the judge was authorized to hold that movants had been guilty of laches in preparing and submitting for approval a brief of the evidence; and the testimony as to the correctness of the brief presented being conflicting, the court did not err in refusing to approve the brief or to .certify as to the correctness of the grounds in the amendment to the motion for new trial, and then the dismissal of the motion for new trial, which, without the amendment, contained only the general grounds, followed as a matter of course. Lucas v. Cordele Guano Co., 106 Ga. 200 (32 S. E. 120). Judgment affirmed. All the Justices concur.