Kirkland v. Ferris , 148 Ga. 84 ( 1918 )

Atkinson, J.

The judge of the superior courts of the Rome circuit was disqualified in a case pending in the superior court of Floyd county. The judge of the city court of Floyd county presided at the trial, which occurred during the July term 1917. After verdict a motion for new trial was presented to the judge who tried the case. A rule nisi was granted, returnable before the same judge “at the court-house in itome, Georgia, at ten o’clock a. m. on the 17th day of September 1917.” At the same time an order was granted setting the motion for new trial to “be heard and determined on the 17th day of Sept., 1917, in term time or vacation time at Rome, Ga.,” and “that the movant have until the 17th day of September, 1917, to prepare and present for approval a brief of evidence in said case.” The day so appointed for the hearing was within a recess before final adjournment of the term of court at which the trial occurred and during the regular September term of the superior court of • Chattooga county, that county being also included in the Rome judicial circuit. The motion for new trial was regularly called on September 17th at the hour and place' appointed for the hearing. The attorney for the movant was absent. No brief of evidence having been presented for approval and no one appearing for the movant, the judge, on motion of respondents, dismissed the motion for new trial. The movant excepted. Held, that under a proper construction, the orders setting the motion for new trial appointed the hearing for chambers at the time specified, whether that time should be in vacation or during the term of the court; and the trial judge was not ousted of jurisdiction to pass upon the motion at the time appointed, by reason of the opening’of the regular session of the superior court of Chattooga county, presided over by the judge of the Rome circuit. The case differs from Broadway National Bank v. Kendrick, 124 Ga. 1053 (53 S. E. 576); Butler v. State, 112 Ga. 76 (37 S. E. 119); Ivey v. State, 112 Ga. 175 (37 S. E. 398); cited by plaintiff in error.

Judgment affirmed.

All the Justices concur, except' Fish, O. J., absent.

Motion for new trial. Before Judge Nnnnally (of the city court). Floyd superior court. September 17, 1917.

M. B. Eubanks, for plaintiff in error. Benny & Wright, contra.