McKoy v. Hardy , 92 Ga. App. 525 ( 1955 )

92 Ga. App. 525 (1955) 88 S.E.2d 708

McKOY
v.
HARDY.

35737.

Court of Appeals of Georgia.

Decided July 15, 1955.

James R. Venable, Margaret Hopkins, for plaintiff in error.

Kyle Yancey, contra.

FELTON, C. J.

The court did not err in overruling the motion for a continuance or in dismissing the motion for a new trial. "Section 5485 of the Civil Code [Code 1933, § 70-302] is addressed to the sound discretion of the trial judge and it will be presumed in the absence of a clear showing to the contrary, that this discretion was not abused." James v. John Flannery Co., 6 Ga. App. 811 (1b) (66 S.E. 153). The verdict and judgment were dated February 17, 1955. The motion for new trial on the general grounds was dated February 22, 1955. The hearing on the motion was set for and held on April 18, 1955. The brief of evidence was not ordered from the court reporter until April 18th, the date of the hearing. The court did not abuse this discretion in holding that legal cause was not shown for the granting of a continuance for the purpose of amending the motion for new trial or procuring a brief of the evidence. "As the statute [Code § 70-301] is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official stenographer of the court has written out his report of the evidence or not. And hence the stenographer's omission or failure so to do is no legal reason for delaying the filing beyond the time granted by the court's special order; certainly not, unless that reason is, under all the circumstances satisfactory to the presiding judge." Boatwright v. State, 91 Ga. 13 (16 S.E. 101).

The refusal of the court to grant a continuance left the motion pending on the general grounds only and since no brief of the evidence was attached to the motion, the court did not err in dismissing the motion. Gartrell v. Theobold, 65 Ga. App. 161 (15 S.E.2d 470); Dollar v. Fred W. Amend Co., 58 Ga. App. 797, 798 (199 S.E. 845), and citations.

The defendant's motion for damages for an appeal for delay only as provided for in Code § 6-1801 is denied.

The court did not err in refusing to grant a continuance or in dismissing the motion for a new trial.

Judgments affirmed. Quillian and Nichols, JJ., concur.