Jackson v. Hunter , 150 Ga. 789 ( 1920 )

Gilbert, J.

“ The judges of the superior and city courts have power to hear and determine, in vacation as well as in term time, without any order passed in term time, all motions for new trial, certioraries, and all such other matters as they now can hear and determine in term time, and which are not referred to a jury.” Civil Code, § 4852. “ The hearing of all cases provided for in the preceding section shall be fixed by the judge upon the application of either party or his counsel, of which time and place the party making said application, or his attorney, shall give the opposite party or his attorney at least ten days notice in writing.” Civil Code, § 4853. “ Said judges can not exercise any power out of term time, except the authority is expressly granted; but they may, by order granted in term, render a judgment in vacation.” Civil Code, § 4854. “Where through no fault of the movant a motion is not heard in vacation, or where a hearing is adjourned to the next term, the motion stands for hearing in term as if no, order had been taken.” Civil Code, § 6090. Applying the foregoing code sections to the facts stated in the question propounded by the Court of Appeals, we reply that the court was without jurisdiction on May 27th, 1919, three days subsequent to the. date named in the term order for the hearing, to hear and determine the motion, and the order passed on that day providing for a hearing of the case on July 5th was a nullity. It is assumed from the question as propounded that the order of the judge was not based upon or intended to be in compliance with the provisions of the Civil Code, § 4853. The movant appearing not- to be at fault, the motion, by operation of law (Civil Code, § 6090), siood for hearing at the next term of the court, as if no order had been taken. A., K. & N. Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501). Where counsel, on the day previous to the date set for the hearing of the motion, agreed upon a named later date for the hearing of the motion, and the court, in vacation, on a different day from that agreed upon by counsel, dismissed the motion on the ground that the movant failed to appear, such judgment of dismissal is void for want of jurisdiction. Even if the written agreement of counsel could operate as giving the judge jurisdiction of the motion on the date agreed upon, in no event could it so operate on a day not agreed upon by counsel. Phoenix Bank v. Shirling, 146 Ga. 163 (91 S. E. 23); Brinn v. Mason, 147 Ga. 471 (94 S. E. 563).

All Ike Justices concur.