Langford v. State , 30 Ga. App. 278 ( 1923 )

Bloodworth, J.

The defendant was convicted on the 26th of February, 1923. On the same date a motion for a new trial was filed and set for a hearing on the 3d of March, 1923. On the day set the motion for a new trial was called for a hearing, and one of defendant’s counsel had his name stricken, and another of defendant’s counsel was absent. On motion of the solicitor an order was entered striking the motion for a new trial, for want of prosecution. On March 5 the defendant filed a motion to reopen the motion for a new trial, because his absent counsel “understood that the motion was set for Saturday, March 10, 1923, and for this reason did not appear.” The trial judge, on March 5, overruled the motion to reopen, and to this judgment refusing to reinstate the motion for a new trial the defendant excepts.

The motion for a new trial was called at the time set, and dismissed by the trial judge for want of prosecution, and no sufficient legal reason is shown for reopening it. The exercise of discretion by the trial judge in refusing to reopen a motion for a new trial dismissed for want of prosecution will not, unless flagrantly abused, be disturbed. See Strachan v. Wolfe, 2 Ga. App. 254 (58 S. E. 492). Furthermore, it appears from the record (which includes the motion for a new trial on the general grounds, and a brief of the evidence) that the defendant suffered nothing by the refusal to reinstate, as there is some evidence to support the verdict, and the judge who presided on the trial of the case and who had this record before' him probably considered the futility of reopening the motion for a new trial in exercising his discretion and refusing to reinstate. “ In the present case it is not made to appear that there was any abuse of this discretion.” See Jones v. Garage Equipment Co., 16 Ga. App. 596 (85 S. E. 940).

Judgment affirmed.

Broyles, G. J., and lAilce, J., concur.