Wiggins v. Marietta Trust & Banking Co.

Holden, J. During- the August term, 1908, of court, the-defendants made a motion for a new trial, and a rule nisi signed by the presiding judge was issued August 31, 1908, requiring the plaintiffs to- “show cause before me, at Such time as may be fixed for hearing- motions during present term of the court, why the foregoing motion should not be granted; ” and an order was passed on that day, providing that movants [347] have “until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said ease,” and further providing ‘‘that said motion be heard and determined at such time as may be fixed for hearing motions during the present term of the court,” of which order and motion for a new trial counsel for the plaintiffs acknowledged service on September 1, 1908. On September 11, 1908, the court took a recess until the fourth Monday in October, 1908, and the presiding judge announced orally in open court that at the time last named “motions would be heard.” The court reconvened on the fourth Monday in October, 1908, and the next day the presiding judge in open court called for a hearing of the motion for a new trial and passed an order in which, after reciting that the motion “having been called in its order for trial and it appearing to the court that no brief of evidence has been prepared and presented for approval and' filing as required by law,” it was adjudged that the motion be dismissed. Held: April 15, 1910. Motion for new trial. Before Judge Edwards. Polk superior court. October 27, 1908. J. M. Hunt and W. H. Terrell, for plaintiffs in error. D. W. Blair and Bunn & Bunn, contra. 1. The order dismissing the motion was not erroneous because there was “no written order of the court setting the said motion for hearing on the date the same was called.” 2. Nor was it erroneous to grant such order because, “movants having no notice that the same was set for that day, other than hearsay that motions would be heard, and not being present in open court when the verbal announcement was made, if such was made, that they were not bound.” 3. The failure of the official stenographer of the circuit to transcribe his notes and furnish counsel for movants with a copy of the evidence introduced upon the tidal did not make it erroneous to dismiss the motion on the ground that no brief of the evidence had been “prepared and presented for approval.” Bryant v. Gray, 105 Ga. 483 (30 S. E. 732); Lambert Co. v. Bray & Co., 127 Ga. 452 (56 S. E. 513). 4. The court did not abuse its discretion in refusing to postpone the hearing of the motion in order to give more time for movants to' prepare and present for approval a brief of the evidence, and in dismissing the motion. Judgment affirmed,. All the Justices concur.