Garraux v. Ross , 150 Ga. 645 ( 1920 )

Hill, J.

(After stating the foregoing facts.) The question to be decided by this court, in view of the foregoing statement of facts, is whether, in a case tried in the city court of Atlanta, the terms of which continue longer than thirty days, where the motion for new trial shall be filed within thirty days from the trial, together with a brief of the evidence, the amended motion, etc., subject to the approval of the court, the court, after the expiration of the thirty days, where no brief of the evidence is made, filed, and approved, and no order taken within thirty days, or any other time, extending the time for completing the brief of evidence and the amended motion for new trial, has jurisdiction to allow 'the motion for new trial and brief of evidence approved and filed, notwithstanding the fact that the defendant has stood by and agreed to the “passing" of the motion for new trial, when it was called for hearing from time to time, without making a motion to dismiss the motion for new trial for want of a brief of the evidence having been filed as required by law. The Court of Appeals decided that the trial court had jurisdiction to do so, and based its decision on the doctrine of waiver.

The Civil Code of 1910, § 6089, provides: “All applications for a new trial, except in extraordinary cases, must be made during the term at which the trial was had; and when the term continues longer than thirty days, the application shall be filed within thirty days from the trial, together with a brief of the evidence, subject to the approval of the judge and subject to the right of amendment allowed in applications for a new trial; but all applications herein provided for may be heard, determined, and returned in vacation." It will be observed that this law requires that all motions for new trial, except in extraordinary cases, must be made during the term at which the trial was had; and when the term continues longer than thirty days, the application shall be filed within thirty days from the trial, together with a brief of the evidence, subject to the approval of the judge, etc. In Reed v. Warnock, 146 Ga. 483 (91 S. E. 545), it was held: “ A motion for a new trial, which includes a brief of the evidence, must be made during the term at which the trial was had; and where a motion for new trial is made in term and no brief of the evidence is filed, and no order of court is taken extending the time at which the brief of evidence may be filed, it is proper to dismiss the motion, (a) And where in such case a motion for new trial was made, but no order of the court was taken in term to extend the time in which a brief of the evidence might be filed, but such an order was taken in vacation subsequently to the filing of the motion for new trial, such order was a mere nullity. (b) On the call of such a motion for a new' trial, set at a certain date in vacation, the court did not err in dismissing it, even though a brief of the evidence was then presented for approval by the court.” For an elaboration of the above headnotes see the body of the opinion beginning on bottom of page 485. And see also Verner v. Gann, 144 Ga. 843 (88 S. E. 204), where it was said by Evans, P. J., at the end of the opinion: “ When no brief of the evidence was filed, and no order taken for an extension of time, no valid motion was pending; and it was not error to dismiss the same on motion. Taliaferro v. Columbus Railroad Co., 130 Ga. 570 (61 S. E. 228).” See, to the same effect; Brunswick Light &c. Co. v. Gale, 91 Ga. 813 (18 S. E. 11); Gould v. Johnston, 123 Ga. 765 (51 S. E. 608); Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879); Moxley v. Ga. Ry. &c. Co., 122 Ga. 493 (50 S. E. 339).

The opinion of the Court of Appeals is based alone upon the doctrine of waiver, and certain decisions of this court arc relied upon to support its decision, viz.: Cook v. Childers, 94 Ga. 718 (19 S. E. 819); Moxley v. Kinloch, 80 Ga. 46 (7 S. E. 123); Mayor &c. of Brunswick v. Davenport, 131 Ga. 465 (62 S. E. 584); Davis v. Howard, 57 Ga. 607. On the argument here counsel for the defendant in error cited the case of Peagler v. Davis, 145 Ga. 316 (89 S. E. 201), and others of like import, to sustain the decision of the Court of Appeals. All of the cases cited by the Court of Appeals, and by counsel for defendant in error, to support its decision, dealt with the effect of waiver on the failure to comply with orders that were taken in each of those cases extending the time for filing a brief of evidence, or the time for the hearing of the motion for new trial. In each of those cases there was a motion for new trial and an order taken extending the time for filing a brief of the evidence, or the time for the hearing. In the case of Cook v. Childers, supra, this does not appear from the published decision, but an examination of the original record of file in the clerk’s office shows that an order of the court was taken in that case. • In the instant case no valid motion for new trial was pending, because a brief of the evidence was essential to the completion of such motion. See citations supra. Even if the conduct of the defendant’s attorney could be held to be an implied waiver from a mere consent to a postponement of the hearing (see Hilt v. Young, 116 Ga. 708, 713, 43 S. E. 76), such waiver by counsel without a timely order of court will not be sufficient to extend the jurisdiction of the court.

In view of what has been said, it follows that the trial court did not err in dismissing the motion for new trial on motion; and it was error for the Court of Appeals to reverse that ruling.

Judgment reversed.

All the Justices concur.