Keen v. Davis & Brandon

Evans, P. J. The plaintiffs brought an action against the defendant for the recovery of land. The case was submitted to the jury in the forenoon, and the court recessed for dinner while the case was being considered by the jury. After dinner the court reconvened, and within a short time the jury returned a verdict for the defendant. The court adjourned about four-thirty o’clock that afternoon, and after the judge had left the court-house counsel for plaintiffs presented to him a motion for new trial. The judge granted a rule nisi, and counsel for the defendant acknowledged [609] service of the motion- and the rule nisi and waived all further service. On the hearing counsel for the defendant moved to dismiss the motion for new trial, on the ground that it was made in vacation. The court overruled the motion to dismiss, and granted a new trial. Exception is taken to these rulings. When the motion was presented to the judge it was based upon the ordinary grounds that the verdict was contrary to law and evidence. The court had formally adjourned. There is no law authorizing the making of a motion for new trial in vacation; it is erroneous for the judge of the superior court to take jurisdiction of such a motion. Civil Code (1910), § 6089; Perkins v. State, 126 Ga. 578 (55 S. E. 501). The written acknowledgment of service upon the motion by the defendant’s counsel, and his waiver of a copy of the motion and of further service, did not have the effect of curing the failure to comply with the requirements of the statute as to the time of filing the motion. Josey v. Groves, 138 Ga. 317 (75 S. E. 135). When the motion came on to be heard the defendant promptly moved to dismiss the same. It was error to refuse this motion. It follows that the grant of the motion for new trial was erroneous. Judgment reversed. All the Justices concur, except Atkinson, J., absent.