Tanner v. State

Luke, J.

1. Where a motion for a new trial is filed in term time and a rule nisi is issued thereon and the motion set for hearing on a certain day in vacation, the case must be heard on that day, and the hearing can not be orally postponed to a later day. If the case be not heard in vacation at the time fixed by proper order, the motion goes to the next regular term of the court, unless it be disposed of pursuant to the Civil Code (1910), §§ 4852, 4853, 6090. Atlanta, Knoxville & Northern Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501) ; Lott v. Wood, 135 Ga. 821 (70 S. E. 661) ; Perry v. State, 12 Ga. App. 573 (77 S. E. 879).

2. The motion for a new trial in this case having been set for hearing in vacation on October 14, 1916, and no formal written order having been passed continuing the motion to another day in vacation, it was error to dismiss the motion at a later day in vacation on the ground that no brief of evidence had been filed and served on the opposite party on October 14, 1916.

Judgment reversed.

Wade, O. J., and George, J., concur.