Hudson v. Williams , 5 Ga. App. 245 ( 1908 )

Hill, C. J.

(After stating the foregoing facts.)

1. The only material question to be decided is as to the validity ■of the original order granted on the motion for a new trial during the term at which the case was tried, dated December 13, 1907. It is insisted that this order was invalid, because it does not comply with the provisions of the act creating the city court of Waynesboro, relating to motions for new trials. This act provides that, "whenever a case is heard at either a regular or special session of said court and defendant desires to move for a new trial, such motion must be made within two days after the adjournment of the session and passed upon by the judge of the city court within ten days after the motion is filed, and not afterwards, unless for good cause further time may, by order, be granted in the discretion of the judge of the city court.” Acts 1903, p. 176, section 7. The phraseology of this act is peculiar 'and somewhat involved. The provision quoted applies, by its terms, only where “defendant desires to move for a new trial.” A plaintiff who loses in the trial court and desires to move for a new trial must do so under the general law on the subject. The words of positive prohibition used in the statute have reference to the act of the movant. He must make the motion for a new trial "within two days after the adjournment of the session . . , and not afterwards, unless for good cause further time may, by order, be granted in the discretion of the judge.” The statute is mandatorjq as applicable to the movant, and he must file his motion within the prescribed two days after the adjournment of the session, unless, in the discretion of the court, further time be allowed him for that purpose. We do not think these words of absolute prohibition apply to the judicial act of the judge. The language of the act which requires the judge to pass upon the motion for new trial "within ten days after the motion is filed” is directory, and not imperative. It would be a great injustice to hold that, notwithstanding the movant had full)' complied with the act, in making and filing his motion, he should nevertheless be deprived of his right by the failure of the judge to perform his duty in passing upon the motion within the ten days. Suppose the judge does not pass upon the motion within the ten days, what then? Shall the movant be put to the expense of compelling him by mandamus to do so, or would the failure of the judge to discharge the duty required of him be cause for impeachment? Either remedy would be inadequate, so far as the movant is concerned. The statute relating to the duty of the judge, construed with reference to the rights of the parties, must be directory, to avoid serious and remediless injustice.

The principle is well settled that when a statute specifies a time within which a public officer is to perform an official act regarding the rights of others, it is merely directory as to the time within which the act is to be done, unless, from the nature of the act to be performed or from the phraseology of the statute, the designation of the time must be considered a limitation on the power of the officer. People v. Allen, 6 Wend. 486; Pond v. Negus, 3 Mass. 230 (3 Am. D. 131); Walker v. Chapman, 22 Ala. 116. Where the words of a statute relate to the manner in which power or jurisdiction vested in an officer is to be exercised, they must be construed to be directory. Nelms v. Vaughn, 84 Va. 696 (5 S. E. 704); State v. Connor, 86 Tex. 143 (23 S. W. 1103); People v. Cook, 8 N. Y. 87 (59 Am. D. 451); 3 Words and Phrases Judicially Defined, 2078. “Statutory prescriptions in regard to the time, form, and mode of proceeding by public functionaries are generally directory, as they are not of the essence of the thing to be done.” 26 Am. & Eng. Enc. Law (2d ed.) 689; Justices v. House, 20 Ga. 328; Wise v. State, 34 Ga. 348; Central Bank v. Kendrick, Dudley, 66. This statute does not impose any penalty upon the judge for a non-compliance with its terms, nor does it declare that the proceedings for new trial shall be null and void unless passed upon within the ten days from the filing of the motion. We conclude, not only from the phraseology of the statute, but from authority, that that part of section 7 of the act of 1903 establishing the city ■court of Waynesboro, which requires a motion for a new trial to be passed upon by the judge within ten days from the filing of the motion, is director)', and a failure on the part of the judge to comply with it would at most be an irregularity, and would not deprive the court of jurisdiction to subsequently pass upon the motion. We are satisfied with the correctness of the above opinion, but if the words of the statute, “unless for good cause further time may, by order, be granted in the discretion of the judge,” should be held to apply to the judicial act of passing upon the motion, as well as-to the act of the movant in filing the motion, then the time when the judge shall pass upon the motion is clearly left to his discretion,, and, if he fixes the time for passing upon the motion beyond the' prescribed ten days, he will be deemed to have had “good cause”' for so doing. If a public officer has any discretion at all in connection with the time when he is to perform a public act, the element of imp^ativeness is excluded.

2. There is no merit in the motion to dismiss because the motion was not heard on January 8, 1908, and no order was then taken granting further time. The order of December 13, 1907, provided that if the motion was not heard on January 8, 1908, it could be heard later, by consent of counsel, and the order of February 15, 1908, recited that it was assigned to that date by agreement of counsel, and on February 15 the court, by agreement of counsel, again postponed the hearing to February 19, 1908.

3. Nor do we think the motion to dismiss because there was no brief of the evidence filed' and approved by the court during the term at which the case was tried, or within ten days thereafter, or on January 8, 1908, or since, is meritorious. The order of December 13, 1907, gave the movant until the final hearing to file an approved brief of the evidence. On February 19, an agreed brief of the evidence' was presented to the judge, and he refused to approve- it; because he declined to pass upon the motion, and dismissed it. Eefusal of the judge to approve the brief when thus, presented was no ground for dismissing the motion. The movant, had, under the original order, until the final hearing of the motion,, to present a brief of the evidence, and have the same approved and. filed. The erroneous ruling of the judge in dismissing the motion made it unnecessary to approve the brief. Indeed, if the judge bad no jurisdiction to hear the motion, he had no jurisdiction to-approve the brief of evidence. Civil Code, §5484; Gould v. Johnston, 123 Ga. 768 (51 S. E. 608), and citations.

Judgment reversed.