McDade v. Hawkins , 57 Ga. 151 ( 1876 )

Bleckley, Judge.

1. The motion for new trial is the speech of the party, not of the judge. When the new trial is granted, the j udge may be considered as speaking to the same effect; but when it is refused, there is no such inference to be drawn, for the refusal may have been because the recitals in the motion were unfounded in fact. If a request to charge was made, as alleged in the motion, what is more easy than to say so in the bill of exceptions ? What the charge requested was, need not be repeated in the bill of exceptions; all that is necessary is, to affirm there that the charge, as set out in the motion, was requested and refused. Even this is not requisite, if the precaution is taken to have the judge declare, over his own signature, elsewhere in the record, as, in an entry on the motion, or in his order overruling the motion, that the recitals are true. It is enough that their truth be vouched by the judge somewhere; but he alone pan authenticate them, and if there be no authentication, they cannot be considered by the supreme court; certainly not, if objection be made by counsel for the defendant in error, at the opening of the argument: Thompson vs. The Georgia Railroad and Banking Company, 55 Georgia Reports, 458.

2. It is not stated in the bill of exceptions before us, or anywhere in the record, that the request to charge was made; and objection was taken at the proper time to our acting on that ground of the motion. We, consequently, treat it as not in the case.

3. While the evidence, perhaps, is not strong enough to compel the verdict, it seems to us quite sufficient to warrant it; and there was no abuse of discretion in refusing a new trial.

Judgment affirmed.