Mayor of Brunswick v. Davenport

Evans, P. J. (After stating the foregoing facts.) We think the coñrt erred in dismissing the motion for new trial under the circumstances appearing in the statement of facts. The statute requires a motion for new trial to be filed during the term at which the trial was had, and after the term has ended it is too late to file the motion. A brief of evidence is an indispensable part of .the motion for new trial, and must be filed either during the term at which the motion was made, or it may be filed in vacation if a term order is taken granting this privilege.^ A failure to file the brief of evidence in term or within the time limited by the term order is ordinarily a good ground for dismissing the motion. Taliaferro v. Columbus R. Co., 130 Ga. 570 (61 S. E. 228). But the filing of the motion and the filing of the brief of evidence stand upon, very different footings. As was observed in Hilt v. Young, 116 Ga. 712 (43 S. E. 78), “the requirement that a motion for a-new trial shall be deposited with the clerk, so that it may be put upon record and be subject to examination, is one in which others than the litigants may be interested. The judgment under review may be one affecting title to property. One having no notice of the pendency of the motion might purchase the execution and suffer loss thereby.” It is the pendency of the motion which affects third parties with notice. The brief of the evidence in the case is a necessary accompaniment of the motion — the motion is not complete without it. The essential office of the brief of evidence is 'to illustrate the merit of the grounds of the motion. The movant is required to present to the court a substantial photograph of the case, in order that the judge may determine whether the grounds of the motion show errors of such a character that a new trial should be had. The public are not interested or concerned with the merits of the motion. The filing of a brief of the evidence has never been recognized by this court as'a jurisdictional fact. Thus it has been rifled that when a motion for a new trial has been fully argued, it is too late to move to -dismiss it because [468] the order fixing the time for the hearing has run out. Davis v. Howard, 57 Ga. 607. Again it has been held that “by arguing the motion for new trial, without moving to dismiss the same for failure to file a brief of evidence in due time, the respondent in the motion waived this matter of objection, and consequently it is not good as a ground of exception to the judgment granting a new trial.” Cook v. Childers, 94 Ga. 718 (19 S. E. 819). A respondent in a motion may insist upon a strict compliance with the law in respect to the filing of the brief of evidence, and, after the time limit for filing the same has expired, is entitled to move for a dismissal of the motion unless he has expressly or impliedly waived the filing of the brief of evidence at an earlier time. But where both parties enter into an express written agreement that the brief of evidence may be filed by the movant at the final hearing, and this agreement has been approved by the court, and the movant, relying on this consent order, has gone to the trouble and expense of preparing the brief, and presents it to the court pursuant to the terms of such order, the respondent will be estopped from insisting on time as of the essence of the filing of the brief of evidence. In Moxley v. Kinloch, 80 Ga. 46 (7 S. E. 123), a consent order was taken, extending to the movant the privilege of filing a brief of evidence by a specified day in vacation. After that day had passed counsel for both parties agreed in writing that the brief of evidence prepared by the movant was correct, and counsel for respondent in the motion for new trial, at the request of counsel for movant, filed the brief with the clerk of the superior court. On the hearing of the motion for a new trial counsel for the respondent moved to dismiss the same because the brief of evidence had not been filed within the time limited in the order. After reviewing many eases bearing upon the subject it was held that the conduct of the respondent amounted to a waiver of his right to insist upon the filing and approval of the brief of evidence within the time limited in the order, and that the filing of the brief, “together with the subsequent approval by the judge, will suffice as a substantial compliance with the order.” The judge is not required to approve a brief of the evidence where such a length of time has elapsed that he is unable to call to mind what transpired at the trial; and many cases will be found affirming the action of the judge in dismissing a motion for new trial where [469] counsel has been in laches. In the case at bar the judge did not predicate his judgment of dismissal upon the ground that counsel for movant was in laches, or from the lapse of time he was unable to recall the evidence, but sustained the motion to dismiss solely because there had not been a literal compliance with the statute respecting the filing of the brief of the evidence. We think resppndent’s attorneys were estopped from insisting that the brief of evidence was not duly filed. Judgment reversed. All the Justices concur.