Audulph v. Josey , 44 Ga. 605 ( 1872 )

McCay, Judge.

If the facts, stated by the movant, justified the granting of the motion, we do not think it ought to be refused because he has not filed a brief of the testimony given in at the trial. In the first place, he was not there to hear it, and the very foundation of his motion is that he was prevented from being there by providential cause. This is not strictly a motion for a new trial. Ho error is complained of in either the Court or the jury. It is rather in the nature of a motion to set aside the judgment, for the reason that, for the reasons stated, the defendant could not be present to put in his defense. The evidence, as given in, sheds no light at all upon the propriety of the motion. The case stands upon the footing of a judgment against a dead man, or a judgment obtained by fraud. It is an accident. And if the Court is satisfied, from the evidence before it, that this accident did occur, and that the defendant’s case has been passed upon to his injury, when he was providentially absent, we do not think the rule of Court requiring him, on motions for new-trial, to file a brief of the testimony, is applicable to the case.

Me do not pass upon the merits of the motion, as that question has not been decided by the Judge, though we incline to think the motion ought to be granted.

Judgment reversed.