Cannon v. Gaines , 199 Ga. 277 ( 1945 )

1. A ground of an amendment to a motion for a new trial based on incidents of the trial dehors the record can not be considered by this court, where the recitals of fact as to such matters are disapproved by the trial judge; nor is the refusal of the judge to verify recitals as to such extraneous matters subject to review by this court. City Bank of Macon v. Kent, 57 Ga. 283 (22); Wood v. Isom, 68 Ga. 417 (5 a); Fletcher v. Collins, 111 Ga. 253 (36 S.E. 646); Vernon v. State, 13 Ga. App. 274 (79 S.E. 85); Goffe v. State, 14 Ga. App. 275 (80 S.E. 519).

2. "On the argument of the motion, although the judge may know and announce that some of the recitals are incorrect, he is not legally bound to point out the errors, but may adjudicate upon the motion as he finds it, nothing the errors, if he shall think proper, in his final order." City Bank of Macon v. Kent, supra.

3. The rule is somewhat different as to a refusal to approve a brief of evidence. "If one who makes a motion for a new trial in due and seasonable time presents a brief of the evidence, evincing a fair and bona fide effort to comply with the law, but which is imperfect or incorrect in certain particulars, the proper practice is not to dismiss the motion for new trial at once because of such imperfections, but to allow a reasonable opportunity to correct them. If the movant fails or refuses to do so, the motion may be dismissed." Norred v. State, 127 Ga. 347 (3) (56 S.E. 464).

4. Under the rule quoted in the preceding paragraph, as applied to the facts of the instant case, the judge erred in entering a final order disapproving the brief of evidence and denying a new trial, without first allowing the movant reasonable opportunity to correct whatever errors there were in the brief of evidence as tendered for approval, it not appearing that the judge did not remember the evidence. Central Railroad Banking Co. v. Pool, 95 Ga. 410 (2) (22 S.E. 631); Price v. High, 108 Ga. 145, 149 (33 S.E. 956); McAdams v. State, 9 Ga. App. 166 (3) (70 S.E. 893); Bugg v. State, 13 Ga. App. 672 (2) (79 S.E. 748); Nixon v. Growers Exchange Finance Corp., 42 Ga. App. 642 (157 S.E. 119); Camp v. Curry-Arrington Co., 46 Ga. App. 17 (166 S.E. 428); Glass v. Brown, 49 Ga. App. 610 (4) (176 S.E. 519); Griffin v. State, 50 Ga. App. 214 (177 S.E. 512); Scott v. State, 53 Ga. App. 61 (4) (185 S.E. 131); Stokes v. State, 67 Ga. App. 276 (19 S.E.2d 842).

5. In the following cases, relied on by the defendant in error, no question was raised as to a refusal of the judge to approve a tendered brief of evidence without first allowing the movant opportunity to correct defects therein: Chastain v. Smith, 47 Ga. 473; Price, v. Price, 122 Ga. 321 (50 S.E. 91); Roberts v. Caire, 133 Ga. 642 (2) (66 S.E. 938); Smith v. State, 62 Ga. App. 733 (3) (9 S.E.2d 714).

Judgment reversed. All theJustices concur.

No. 15148. MAY 10, 1945. Queen Cannon brought an action of ejectment in the fictitious form against Levi Gaines to recover a tract of land in the City of Vidalia, known as lot 16 in block 11 in East Park Subdivision, to which suit the defendant pleaded not guilty. The jury found a verdict in favor of the defendant. The plaintiff made a motion for new trial based on the general grounds, and later offered to amend the motion by adding four special grounds, one merely amplifying the general grounds, and the others complaining of an omission to charge, and of rulings admitting and rejecting evidence. Upon this proposed amendment, the judge entered and signed the following order: "The above amended motion is hereby not approved as true and correct, approved and ordered filed as a part of the entire record in this said case." The movant also offered a paper which purported to contain a brief of the evidence introduced upon the trial. On this paper, the judge entered the following order: "The court is unable to approve the within and foregoing as a true brief of the evidence in the Cannon vs. Gaines case." The judge then passed an order denying the motion for new trial, this order reading as follows: "The within motion coming on for a hearing, and, after much discussion about the brief of evidence tendered by attorney for movant, the brief is not approved, the amended motion is not approved, and the motion for new trial is denied." The movant excepted. The bill of exceptions contained among others the following recitals:

"Be it remembered that on the 20th day of January, 1945, there came on to be heard a motion for new trial in which Queen Cannon was the movant and Levi Gaines was the deft. . . The said motion for new trial was duly made, and service had on the same, and the said Queen Cannon was given till the said 20th day of January to prepare and present for approval a brief of the evidence and an amended motion for new trial till said date, and on the said 20th day of January, 1945, the said Queen Cannon appeared in the court . . and offered for approval a complete brief of the evidence, and an amended motion and the said Honorable Trial Judge dismissed both of the same with orders appearing on Exhibits ``A' and ``B,' both of which are on the brief of evidence and the amended motion, and without pointing out any defects or saying why he could not approve of the said brief and amended motion, both of which are marked respectively said Exhibits ``A' and ``B,' and dismissed the same without saying why he could not approve either of the same or permitting the said movant to show why they were true, and after the said movant stated that she had all of her witnesses present to show that the said brief was correct and true, and the said amended motion was true and correct, and dismissed the same without any legal reason for the same, save that he could not approve them. He never ever read them over, except a part of the brief of the evidence as to Leon Handson, and refused to point out in what respect they were incorrect, and refused to allow the said movant the right and privilege of showing why they were correct and true in all respects."

All of the recitals of fact contained in the bill of exceptions were unqualifiedly certified as true in the final certificate of the trial judge.