Petty v. Mahaffy , 3 Ga. 217 ( 1847 )

By the Court.

Warner, J.,

delivering the opinion.

In this case, it appeal’s from the record, that a motion was made in the Court below to arrest the judgment, which motion was allowed by the Court; exceptions were taken thereto, and the case was brought before this Court by writ of error, and the judgment of the Court below arresting the judgment, was reversed. It also appears, that at the May Term of the Superior Court of the County of Muscogee, in the year 1846, when the motion was first made to arrest the judgment, notice was also given to the adverse party, ‘that in the event the motion in arrest of judgment should be. overruled, a motion for a new trial in the cause would be made. After the judgment of the Court below had been reversed by this Court, a motion was made, at November Term, 1846, for a new trial, in pursuance of the notice originally given, on the ground that the Court had improperly rejected the testimony of two witnesses, Petty and Jordan. At the term of the Court when the case was tried on the appeal, and when the ‘notice that a new trial would be moved for in the event the judgment should not be arrested, there was no brief of the evidence filed, by the party seeking the new trial, as required by the 61st rule of practice.

[1.] By the act of the 7th of December, 1821, the judges of the Superior courts in this State were required to convene at the seat of government, and establish uniform rules of practice for the several circuits. Hotchk. Dig. 500. In pursuance of this act, the judges, in convention, established the following rule : “ A motion for a new trial shall not operate as a supersedeas, unless an order to that effect be entered on the minutes; and in every application for a new trial, a brief of the testimony in the cause shall be filed by the party applying for such new trial, under the revision and approval of the Court.” Hotchk. 951.

This rule was intended to guard the parties against surprise, by having the facts of the case settled while the same were fresh in the recollection of the court and the counsel.

The facts of the case, on which the court should be required to pronounce the judgment of the law, were not to depend on the vague recollection of parties, their counsel, or witnesses, but on the statement made in the brief, sanctioned by the approval of the Court. The wisdom of this rule,' in a practical point of view, commends itself to our hearty approbation. "We have already had occasion to review it, in Graddy vs. Hightower, 1 Kelly R. 255. One of the grounds of error assigned in that case was, “ Because there was no brief of the testimony, approved by the Court or agreed upon by counsel, filed in the cause at the time the rule nisi was moved.” In that case we said, “ that nothing short of a brief of the testimony approved by the Court, and such approval entered on the minutes or agreed upon by the parties or their counsel, and such agreement entered on the minutes at the term at which the rule for a new trial is applied for, will be a compliance with the 61st rule of court; ” and that ground of error was sustained in that case by this Court.

This is said to be a hard case, and it is insisted the Court ought to have permitted the introduction of the affidavits, to show what facts were proved on the trial. To do this would be to introduce the very mischief which the rule was intended to prevent; and although it might not be productive of mischief in this particular ease, yet we are not willing to multiply or create exceptions to a rule which in our judgment is a wise one in its general application. Nothing is of more importance to society, governed by municipal regulations, than that their laws should be uniform, and uniformly administered.

Let the judgment of the Court below be affirmed.