Middlebrooks v. Middlebrooks

• Decision Date: 31 July 1876
• Citation: 57 Ga. 193
• Court: Georgia Supreme Court
• Parties: Samuel C. Middlebrooks, administrator, et al., plaintiffs in error. v. Mary A. Middlebrooks, guardian, defendant in error.

57 Ga. 193

Samuel C. Middlebrooks, administrator, et al., plaintiffs in error. v. Mary A. Middlebrooks, guardian, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

New trial. Jurisdiction. Minutes. Practice in the Supreme Court. July Term, 1876.

When the above stated case was called, a motion to dismiss the writ of error was submitted, upon the ground that the exceptions were to the refusal to grant a motion for a new trial, while the record disclosed that the case was tried at the October adjourned term, 1875, of Jones superior court, which was held on the first Monday in December; that during the term it was agreed that the brief of evidence and motion for a new trial might be perfected and the motion heard before Judge Hill, at Macon, during the month of December or previous to that time, and that his judgment in the case be returned to *Jones county and entered upon the minutes of said court in vacation, as if in term time; that this agreement was approved by the court and ordered to be entered upon the minutes; that Judge Hill passed the following order overruling the motion:

"At Chambers,

"Macon, Ga., January 31st, 1876.

"The accompanying rule nisi and brief of evidence, agreed upon by counsel connected therewith, in the case now stated, was presented to me on Saturday, January 29th, 1876, for sanction and approval, and granting or refusing a new trial therein.

"Whereas, I now entertain serious doubts of my authority to act in the premises, I propose to state them and make them part of the record: (Reciting facts above stated.)

"During the entire month of December I heard nothing further in regard to said motion for new trial, and supposed it had been abandoned. Some time about the middle of January I informed Mr. Bartlett, of counsel for complainants, that I supposed the motion had been abandoned. Assuming that I have the right and authority now to make the rulings that I would have made in December, had the motion been presented during that week, and not otherwise, I approve of the brief of evidence, " etc.

It was insisted that as the motion for a new trial was neither made during the term, nor at the time in vacation appointed by the consent order, that the whole proceeding was coram non judice, and that therefore the writ of error to the judgment overruling such motion should be dismissed.

It was replied, that the record contained an explanatory note of the clerk, attached to the aforesaid consent order, as follows:

"Explanation by clerk. —The above agreement was made late one evening, and in pressing up the business of the court I placed it upon the minutes hurriedly. Afterwards, to wit: next morning, during the hour for motions, the foregoing *agreement was changed, and the month of January substituted for December. And the court having adjourned during the day, the entire papers in the case were delivered to defendant's counsel (by direction of the court,) and I omitted to make the correction on the minutes.

(Signed) "Roland F. Ross,

"Clerk Superior Court, Jones Co., Ga."

Mr. S. D. Irvin, of counsel for plaintiffs in error, also submitted his affidavit, to the effect that on the morning after the consent order referred to in the record was taken, when the minutes were read, Mr. William A. Lofton, of counsel for defendant in error, moved to change the terms of the...