Brinn v. Mason

Eish, C. J. A motion for new trial was made during the term of the superior court at which the verdict complained of was rendered; and on the same day a rule nisi was issued by the court, setting a time and place in vacation for a hearing on the motion, and providing further: “If for any reason said motion is not heard and determined at the time and place above fixed, it is ordered that the same shall be heard and determined at such time and place in vacation as counsel shall agree upon; and upon failure to agree, then at such time and place as the presiding judge may fix on the application of either party, of which time and place the opposite party shall have at least five days notice. If for any reason this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter. It is further provided that movant shall have until the hear- ' ing, whenever it may be, to prepare and present for approval a brief of the evidence in said case.” On the date set in vacation no action whatever was taken by either the court or parties affecting the motion for new trial. Held, that the motion did not become functus officio because it was not heard on the day named in the rule nisi, or because no brief of evidence was then tendered for approval, or because no order was then taken continuing the hearing. When such motion was not heard during the vacation, it stood for hearing and determination in term time. It follows that the court did not err, at a hearing-during the ensuing term, in overruling a motion, to dismiss the motion for new trial on the following grounds: (1) No brief of the evidence was presented and approved and filed on July 14, 1916, the date fixed for the hearing of'said motion and the time allowed in which movants must file said brief of evidence. (2) There was no order taken on July 14, 1916, continuing the time for filing the brief of evidence and hearing the motion. (3) There was no valid motion for a new trial before the court. Holtzendorff v. Dillard, 136 Ga. 241 (71 S. E. 132); Phoenix Bank v. Shirling, 146 Ga. 163 (91 S. E. 23). Judgment affirmed. Ail the Justices concur. Motion for new trial. Before Judge Worley. Franklin superior court. November 21, 1916. George L. Goode and George 0. Grogan, for plaintiffs. E. E. Chandler and W. R. Little, for defendants.