Horne v. Phillips

Carlisle, J. 1. “After nonsuit, a motion to reinstate, accompanied by a brief of the evidence, is one remedy available to the plaintiff who has been nonsuited. City of Atlanta v. Jenkins, 137 Ga. 454 (73 S. E. 402).” Wells v. Aldridge, 75 Ga. App. 702 (44 S. E. 2d 183). 2. Whether such a motion will be granted is matter within the legal’discretion of the trial court, and where he refuses to reinstate the case his discretion will not be controlled, unless manifestly abused. Glenn v. Glenn, 152 Ga. 793 (111 S. E. 378); Southern Railway Co. v. James, 114 Ga. 198 (39 S. E. 849). [224] Decided January 20, 1956. Harold A. Boggs, for plaintiff in error. Rupert A. Brown, R. Howard Gordon, contra. 3. “In all cases or situations in which a brief of evidence is now permitted or required under the laws of this State, it shall be deemed a compliance with such permission or requirement that a stenographic report of the trial of the case, with immaterial questions and answers and parts thereof stricken, ... be supplied or used.” Code (Ann. Supp.) § 6-813. A stenographic report of the trial of the case from which' immaterial questions and answers, objections to evidence, colloquies between counsel as to the admissibility of evidence, and rulings of the court on objections to evidence, have not been stricken does not constitute a compliance with the statutory requirement and does not require a determination of any assignment of error in the determination of which reference must be made to the purported brief of evidence. Brown v. Clarke, 211 Ga. 61 (84 S. E. 2d 14); Williamson v. Yakupian, 211 Ga. 61 (84 S. E. 2d 15); Anderten v. State, 92 Ga. App. 544 (88 S. E. 2d 719). 4. Under an application of the foregoing principles of law to the facts of the present case, this court cannot say as a matter of law that the trial court abused its discretion in refusing to reinstate the plaintiff’s action of trover after a nonsuit had been entered therein as there was no valid brief of evidence accompanying the motion to reinstate. City of Atlanta v. Jenkins, 137 Ga. 454 (73 S. E. 402). Judgment affirmed. Gardner, P. J., and Townsend, J., concur.