East Tennessee, Virginia & Georgia Railroad v. Whitlock , 75 Ga. 77 ( 1886 )

Blandeokd. Justice.

The first case was tried at the May term, 1884, of Glynn superior court, and a verdict and judgment rendered for defendant in error. The plaintiffs in error prepared the papers during the term for a motion for new trial. The term of the court having terminated unexpectedly by reason of the presiding judge having absented himself from his court, the motion for new trial and brief of evidence was, after the expiration of the term, filed in office and presented to the judge of the court to be heard. The defendant in error objected to the hearing in vacation. The court overruled this objection, and defendant in error excepted. The court heard the motion and refused the same, and plaintiff in error excepted.

The case was brought to this court by both parties, at the February term, 1885, when this court, having intimated that, as the term of the court had expired, a motion for new trial could not thereafter be made, the counsel for plaintiff in error was allowed to withdraw the" case without prejudice, and the judgment of the court below was thereby affirmed. The plaintiffs in error, at the first term of the court after the rendition of the j udgment of this court, moved for a new trial as in extraordinary cases, but the motion is similar, embracing the same grounds, as the motion which had been made and disposed of by this court.

The defendant in error, Whitlock, moved to dismiss said motion, and objected to the hearing of the same. The court overruled the motion and the objection, and heard the same; to this Whitlock excepted, and upon the hearing, the court refused the new trial, and the railroad excepted, and the case is brought here by both parties.

The motion for new trial in extraordinary cases, as provided for in sections 3719 and 3721 of the Code, was intended in a great degree to take the place of a bill in equity for new trial. The parties are allowed by this motion to do at law what could only have been done i'n equity before that time, and hence it must follow that such a motion must contain clearly and specifically all the grounds necessary to have been averred in a bill for new trial. 3 Graham & Waterman on New Trials, §1454 et seq.

The only averment which takes this motion out of the ordinary motion for new trial is, that the presiding judge absented himself from his court, whereby the term of the court was terminated, so that the ordinary motion for new trial could not be heard during that term. There is no allegation of fraud or surprise or providential cause of interference. It is true that the counsel for plaintiff in error was active and vigilant, and it was no neglect or fault of theirs that the term of the court was lost. The only thing which they might hávé done which was not done, was to have had the motion filed in court so that the same could have been pending and gone over to the next term. Smith vs. Lowry, 1 Johns. Ch. R., 320; 9 Wall., 805; 42 Ga., 41; 57 Id., 285; 71 Id., 654; Code, §372; 72 Ga., 204; 65 Id., 57; 62 Iowa, 212.

What we have said applies equally to the case of McCullough vs. Norr.'e & Johnson.

The court erred in refusing to dismiss the motion for new trial, and as he refused the new trial in both cases, it follows that the judgment, of the court below must be affirmed.

Judgment affirmed.