Jill Brothers Inc. v. Holmes , 62 Ga. App. 283 ( 1940 )

While I concur in the rulings made and the judgment on the main bill of exceptions, I do not concur in the judgment of dismissal of the cross-bill of exceptions. I am of the opinion that the questions raised by the main bill of exceptions should not be considered for the reason that the cross-bill of exceptions presents a question which is controlling in this case (Cheshire v. Williams, 101 Ga. 814,29 S.E. 191; Gay v. Gay, 108 Ga. 739, 32 S.E. 846;Smith v. Van Hoose, 110 Ga. 633, 36 S.E. 77), in that the motion for new trial should have been dismissed because there was no brief of evidence, as required by law, filed therewith.Baker v. Johnson, 99 Ga. 374 (27 S.E. 706); Mize v.Americus Mfg. Co., 106 Ga. 140 (32 S.E. 22); Moxley v.Ga. Ry. c. Co., 122 Ga. 493 (50 S.E. 339); Dollar v. FredW. Amend Co., 186 Ga. 717 (198 S.E. 753), and cit.; Ga. Ry. El. Co. v. Hamer, 1 Ga. App. 673 (3) (58 S.E. 54);Turner v. Spell Live Stock Co., 31 Ga. App. 343 (2) (120 S.E. 786); Morris v. Gilham-Schoen Electric Co., 40 Ga. App. 649,650 (150 S.E. 924). It is well-established law that without such brief of evidence the motion for new trial is a nullity and subject to dismissal. Whitaker v. State, 138 Ga. 139, 140 (75 S.E. 254); Garraux v. Ross, 150 Ga. 645, 649 (104 S.E. 907); Lucas v. Lucas, 179 Ga. 821 (2) (177 S.E. 684);Butler v. Jacques Tinsley Co., 31 Ga. App. 74 (119 S.E. 469); Dunn v. Goodrich Rubber Co., 32 Ga. App. 202 (122 S.E. 793); Baggett v. State, 42 Ga. App. 389 (156 S.E. 276). There is nothing to amend. Baker v. Johnson, supra.

Applying the above principles of law to the facts of the present case, where the plaintiff brought suit on an account against a nonresident corporation and on the trial of an issue made by the filing of a plea to the jurisdiction a jury made a finding against the plea, and judgment was entered accordingly, and no exception was then taken, but the case proceeded to trial before another jury on its merits at the same term, and verdict and judgment were rendered in favor of the plaintiff, and where in due time the defendant filed a motion for new trial on the general grounds in such case, but never filed in connection therewith a brief of the evidence adduced on the hearing on its merits, but thereafter filed and had allowed an amendment to such motion in which it was contended that the verdict in the main case should be reversed and set aside because of errors occurring on the trial on the question of jurisdiction, and also filed in connection therewith a brief of the evidence adduced only on the trial of the collateral issue of jurisdiction, the purported motion for new trial, either as originally filed or as amended, was not a legal motion but was a nullity and invalid, because no brief of the evidence adduced on the trial of the case on its merits was filed as required by law, and, accordingly, the court erred in refusing to dismiss the purported motion for new trial as amended, on the plaintiff's motion on the ground that the requisite brief of evidence had not been filed.