Lee v. Atlanta Street Railroad

Bleckley, Chief Justice.

The main case tried below came within the act of 1889 which requires the brief of evidence to be filed, as well as the motion for a new trial to be made, within thirty days after the trial was had. The brief of evidence not having been filed until after the' thirty days-had expired, the court for that reason dismissed the motion for a new trial. It was insisted that this was wrong because the delay to file the brief was matter of consent between counsel for the respective parties. There was no waiver by conduct outside of the alleged express consent, and the latter was not in writing nor was it admitted to have been made by the party or the counsel against whom it was sought to be enforced. In other-words, the fact that there was any consent of counsel was controverted. This being so, rule 20th of the superior courts (Code p. 1348) applies. This rule reads thus: “No consent between attorneys or parties will be enforced by the court, unless it be in writing and signed by the parties to the consent.” The counsel evidently misunderstood each other, and thus one of the actual evils against-which the rule was aimed arose in the present case. There was no error in dismissing the motion for a new trial. Jiodgment affirmed.