Marshall v. State

Luke, J.

On March 2, 1925, at the regular March quarterly term of the city court of Dublin, the defendant’s motion for a new trial was filed. The rule nisi, without having the date of hearing inserted therein, was then signed by the court. “On or about the fifth or sixth of April, 1925,” the court set the hearing for April 11, 1925, by inserting that date in the rule nisi. On April 8, 1925, the court signed an order adjourning the March quarterly term of court. On April 11, 1925, the motion was dismissed, because a copy of it and of the rule nisi had not been served upon the solicitor, who had waived nothing. In the meantime the regular March monthly term of the city court of Dublin had been held, on March 16. Keld, that the March quarterly term of the court stood adjourned by operation of law five days prior to March 16, the commencement of the March monthly term; that the judge’s act attempting to perfect the rule nisi by inserting therein the date of the hearing was coram non judice and nugatory; that the court was without authority to take any action on the motion on April 11; and that the motion automatically went over to the next regular quarterly term, or some subsequent term. Civil Code (1910), § 4877; Coulson v. State, 13 Ga. App. 148 (3) (78 S. E. 1108); Garfield Oil-Mills Co. v. Stephens, 16 Ga. App. 655 (2) (85 S. E. 983); Broadway Nat. Bank v. Kendrick, 130 Ga. 382 (2) (60 S. E. 998); Shockley v. Turnell, 114 Ga. 378 (1) (40 S. E. 279). The court erred in dismissing the motion.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.