Trost v. Woodruff , 70 Ga. App. 219 ( 1943 )

1. The motion to dismiss the writ of error is denied.

2. Where the respondent in a motion for a new trial objects to the hearing of the motion on its merits on the ground that the brief of evidence and amended grounds of the motion have not been approved, and the judge hearing the motion proceeds with the hearing without specifically ruling on the objection, such proceeding with the hearing of the motion in its merits amounts to an overruling of the objection, and the participation by the respondent in the hearing of the motion on its merits does not result in a waiver of the approval of the brief of the evidence and the amended grounds of the motion for a new trial. The judge erred in proceeding with the hearing and determination of the motion for a new trial.

DECIDED NOVEMBER 26, 1943. Henry E. Trost sued J. W. Woodruff in three counts for services allegedly rendered. There was a verdict for the plaintiff on all three counts. The defendant filed a motion for a new trial. The trial judge died pending a hearing of the motion. Hon. T. Hicks Fort qualified a judge of Muscogee superior court on September 30, 1942, disqualified in the case, and refereed the case to Hon. C. W. Worrill, of the pautaula circuit, who assumed jurisdiction and set the hearing on the motion for April 14, 1943, during the February term of Muscogee superior court. Judge Worrill granted Woodruff a new trial on counts one two, and three of the petition. Trost excepted to that judgment. The bill of exceptions contains the following recitals: "At the appointed time and place of said hearing or motion for new trial and before consideration thereof, Trost objected to the brief of evidence a presented by Woodruff and urged that no brief of evidence had been agreed to by counsel or approved by the court. The court then and there permitted the hearing of said motion for new trial to proceed, and counsel for both sides argued the merits if said motion for a new trial. Thereafter, during the hearing of said motion for new trial and before the announcement of the court's decision on said motion. Trost again objected to the brief of evidence as presented because it had not been agreed to by counsel and had not ben approved by the court. The judge permitted the hearing to continue and conclude and announced his decision granting Woodruff a new trial on each of the three counts of Trost's petition. . . At said appointed time and place for hearing said motion for new trial Trost objected to the consideration of the several grounds of the amended motion of Woodruff for a new trial because the grounds thereof had not been examined, verified, and approved by the judge, and because said grounds were not true and correct. Trost then and there insisted that each and every ground of the proffered amended motion should be examined, verified, and approved by the judge before any hearing on the merits of said motion. The judge then and there, without first having approved the grounds of the proffered amended motion, heard and considered the same. . . To the action of the judge in awarding and ordering a new trial to Woodruff, Trost excepted, and now excepts and assigns the same as error upon the ground that the same was contrary to law, in that (1) an approved brief of evidence duly filed in court is essential to the validity of a motion for a new trial, and (2) the approval by the judge of the grounds of an amended motion is necessary before such grounds can legally be considered." Plaintiff in error, in the bill of exceptions, voluntarily specified as material to a clear understanding of the errors complained of all of the record except (1) a brief of evidence filed in the clerk's office May 25, 1943, (2) an amended motion for new trial filed on May 25, 1943, and two other records it is not necessary to set out, the above records having been transmitted to this court at the direction of the judge. Preceding the certificate to the bill of exceptions appears the following note by the judge: "No objection was made by plaintiff and overruled by the court to the hearing of the motion for new trial on its merits, or to a decision to be made by the court upon the amended motion for new trial, either upon the ground that the brief of evidence, or the grounds of the amended motion had not ben agreed upon or approved." The judgment of the court granting a new trial, except for preliminaries, is as follows: "Upon consideration, it is considered, ordered, and adjudged, that a new trial be and the same is hereby granted upon counts one, two, and three of the petition of plaintiff." 1. The motion to dismiss the writ of error is denied. We do not interpret the judge's note as contradicting the bill of exceptions. As we interpret the note it simply means that there was no express overruling of the objections made to proceeding with the hearing without an approved brief of the evidence and amended motion for a new trial.

2. The Code, § 6-805 provides: Objections in connection with motion for new trial to be raised before trial judge. — Where the judge has finally passed on the merits of a motion for a new trial and the parties have raised no question as to the sufficiency of the approval of the grounds of such motion, or of the approval of the jurisdiction of the judge to entertain the motion at the time he did, if the parties acquiesced in his entertaining it at that time, no question as to these matters shall be entertained by the reviewing courts unless first raised and insisted on before the trial judge." Under the facts of this case the respondent sufficiently complied with the above Code section by objecting to proceeding with the hearing without an approved brief of the evidence and approved amended grounds of the motion for a new trial. Proceeding with the hearing was equivalent to an overruling of the objections. Such motion was the making of such an objection as is contemplated by the quoted section of the Code, and also was an insistence upon it within the meaning of the section. The action of the judge in proceeding with the hearing was necessarily an overruling of the objection, and since this is true, the respondent will not be held to have waited the approval of the documents referred to by arguing the motion on its merits after such overruling of their objection. There was no motion to dismiss the motion for a new trial based on the absence of an approval brief of the evidence. In view of what has ben said the judge erred in considering and passing on the motion as amended without an approved brief of the evidence, and in passing on the amended grounds without their having first been approved. Upon return of the case to the trial court it will stand as if the motion for a new trial had never been heard and passed on, and for whatever other proceedings as are meet and proper under the circumstances.

Judgment reversed with direction. Stephens, P. J., andSutton, J., concur.