Shepherd v. State , 79 Ga. App. 694 ( 1949 )

"An order passed in term, setting the hearing of a motion for new trial in vacation, in effect keeps the term, relatively to that particular case, open until such motion shall have been decided. Herz v. Frank, 104 Ga. 638 (30 S.E. 797). So where, by an order passed in term, the hearing of a motion for new trial is set for a particular day in vacation, that day, relatively to such motion, is in legal contemplation a continuance of the term at which the order was granted; and if the motion is not, at the time thus fixed, either heard on its merits or dismissed, it must by express written order be continued to some subsequent day, or else it will go over to the next term of the court in which it was made. A., K. N. Ry. Co. v. Strickland, 114 Ga. 998 (41 S.E. 501)." Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602 (160 S.E. 775). "Unless it be made to appear that the failure to hear the motion or to file a brief of the evidence was the fault of the movant, the motion would stand for hearing at the next . . term." James v. John Flannery Co., 6 Ga. App. 811 (66 S.E. 153). An amendment together with a brief of evidence submitted for approval during the next term is within time and in compliance with the orders of court continuing the hearing of the motion, and the court erred in sustaining the motion to dismiss the motion for a new trial.

Judgment reversed. Gardner and Townsend, JJ., concur.

DECIDED JULY 15, 1949. On December 7, 1948, at the November adjourned term, the defendant was tried, convicted, and sentenced; he moved for a new trial on the general grounds; and the court caused a rule nisi to be issued to show cause on December 20, 1948, at a specified time and place, why the motion should not be granted, and entered the following order: "The defendant having made a motion for a new trial in said case, on the grounds therein stated, and said grounds having been approved by the court, and it appearing that it is impossible to make out and complete a brief of the testimony in said case before adjournment of court; it is ordered by the court that said motion be heard and determined on the 20 day of Dec. in vacation at ____________, and that movant may amend said motion at any time before the final hearing. If for any reason said motion is not heard and determined at the time and place above fixed, it is ordered that the same shall be heard and determined at such time and place in vacation as counsel may agree upon, and upon failure to agree, then at such time and place as the presiding judge may fix on the application of either party, of which time and place the opposite party shall have at least five days notice. If for any reason this motion is not heard and determined before the beginning of the next term of this court, then the same shall stand on the docket until heard and determined at said term or thereafter. It is further ordered that movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case and the presiding judge may enter his approval thereon at any time, either in term or vacation, and if the hearing of the motion shall be in vacation, and the brief of evidence has not been filed in the clerk's office before the date of the hearing, said brief of evidence may be filed in the clerk's office at any time within 10 days after the motion is heard and determined." Service of the motion and order was acknowledged by counsel for the State on December 13, 1948. On December 20, the court continued the hearing until December 31, and on that date continued the hearing until January 14, 1949, and on that date entered the following order: "The within and foregoing motion is hereby continued to be heard at 10:00 a. m. on Jan. 28, 1949, at LaGrange, Ga." It is recited in the bill of exceptions: "that on January 14th said motion for new trial was not called for hearing, and on February 15th, 1949, defendant tendered his amended motion for new trial, together with brief of evidence and charge of court, and which said court did then and there refuse to approve. That on February 17, the Solicitor-General of said Coweta Circuit filed a motion to dismiss said amended motion on several grounds therein stated, and on said date the Honorable Court sustained said motion to dismiss said motion for new trial and dismissed same." The defendant excepted to this last judgment of the court dismissing his motion for a new trial.