Pendergrass v. Duke

Fish, C. J.

(After stating the facts.) The question that is controlling, as to both the main and cross bills, is whether Judge Jones, at the. time he rendered the judgments respectively complained of in the main and cross bills of exceptions, had jurisdiction to render the judgments. It is true that a motion for a new trial had been filed during the term at which the trial was had, but no brief of evidence — which is an essential part of a valid motion — accompanied it; nor, as will hereinafter appear, had any valid order been granted extending the time for preparing and filing such brief. While a judge Of the'superior court has power to hear and determine a motion for new trial in vacation as well as in term time, without an order passed in term time (Civil Code, § 4852), when upon the application of either party the judge has fixed a time for the hearing, and ten days notice thereof has been given the opposite party (Civil Code, •§ 4852), such power can be exercised only where there is a valid motion for new trial pending. When the motion for a new trial'in the present case was filed, Judge Walker was presiding. Judge Jones, at the end of the previous week of the term, had severed his connection with the court in which the trial was had; and therefore he had no more power to grant an ■order relating to the motion for new trial, or authority to hear and determine it, than any other judge of the superior courts of the State who had not presided in the court during the term at which the trial of the case was had. Of course Judge Walker, who was presiding when the motion was filed, could have granted a rule on ■the motion for new trial returnable before Judge J ones, to be heard and determined by him; but as this was not done, we are of the opinion that Judge Jones was without jurisdiction, to entertain the motion for a new trial and to pass upon its merits, and therefore that he should have dismissed it on motion. The judgment on the cross-bill of exceptions is therefore reversed; and as this ruling disposes of the whole ease, the main bill of exceptions is dismissed.

All the Justices concur.