Strickland v. Bell

Atkinson, J. Bell recovered a verdict against Strickland, who moved for new trial. Upon presentation of the motion the judge passed the following order: “Read and considered. It is ordered that the plaintiff show cause before me at Claxton, Ga., at 10 o’clock a. m. on the 26 day of June, 1914, why the foregoing motion should not be granted. It is further ordered that 'the plaintiff be served with a copy of this motion and order at least 1 day before said hearing, and that this order act as a supersedeas until the further order of this court. This 15th day of April, 1914.” Service of the motion was not made on the plaintiff within the time specified in the above order. It does not appear that any excuse was shown for failure of such service, or that there was a waiver of service by the opposite' party. The motion was not heard at the time specified in the order, but was continued until a later date (July 27th), and thirteen days before this date service was made on the attorney for the respondent, and two days before the hearing the respondent was served personally. Held, that, though the motion was not heard at the time specified in the original order, service of the rule nisi should have been perfected according to the terms of such order; and the judge did not abuse his discretion, upon the final hearing, in dismissing the motion for new trial for want of service upon the respondent in accordance with the terms of the order of April 15, 1914. Civil Code, § 6080; McMullen v. Citizens Bank, 123 Ga. 400 (51 S. E. 342). Judgment affirmed. All the Justices concur.