Brown v. Lee , 21 Ga. 159 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

In these cases the motion was a technical motion in arrest of judgment, not a motion for a new trial.

But the grounds of the motion are not such as are adapted to a motion in arrest of judgment. They are such as suit a motion for a new trial.

“The only ground of arresting judgment at this day is some matter intrinsic, appearing upon the face of the record, which would render it erroneous and reversible; for though it seems to have been otherwise formerly, yet it is now settled,, that judgment cannot be arrested for extrinsic or foreign matter, not appearing on the face of the record, but the Courts are to judge on the record itself, that their successors may know the grounds of their judgment.” This is the language of Mr. Tidd; and no doubt it expresses what is the law. 2 Tidd, 918.

None of the grounds of this motion appeared “upon the face of the record.” None of them, therefore, was a ground, adapted to the motion. Of course therefore, none of them could be a ground sufficient to support the motion.

And although it is true, that the grounds are such as suit a motion for a new trial, yet they cannot be available in this case for the motion, considered as a motion for a new trial. The motion as a motion for a new trial came too late.

The motion was not made until the second term of the Court after the trial. And although made at that term, yet it was not preceded by a “twenty day’s notice,” given to the other party.

So, that the,motion was too late, tried, whether by the decisions of this Court, or by the statute. Sec. 1 Kelly 253; 4 Ga. R. 157; Pr. Dig. 432; Sec. lvii.

We think, therefore, that the judgments in both cases ought to be affirmed.

Judgment affirmed.