The Western v. Johnson

• Decision Date: 31 August 1877
• Citation: 59 Ga. 626
• Parties: The Western and Atlantic Railroad Company, plaintiff in error. v. Tellman W. Johnson, defendant in error.
• Court: Georgia Supreme Court

59 Ga. 626

The Western and Atlantic Railroad Company, plaintiff in error. v. Tellman W. Johnson, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

New trial. Contracts. Time. Before Judge McCutchen. Gordon Superior Court. March Term, 1877.

Reported in the opinion.

Shumate & Williamson; Fain & Milner, for plaintiff in error.

Dabney & Fouche; W. K. Moore, for defendant.

BLECKLEY, Judge.

In an action by Johnson against the railroad company, a verdict was rendered for the plaintiff, on the 23d of November, 1876. Upon the same day, a consent order was passed by the court, as follows: "It is, on motion of counsel for defendant, and by consent of counsel for plaintiff, ordered that the defendant have thirty days after the adjournment of this court, to make and file motion for new trial, and a brief of the testimony approved by the court, in said case, and that said motion be argued and decided in vacation at such time as the court may appoint, provided counsel can, at the time, argue it without manifest inconvenience." The court adjourned, for the term, on the next day, that is, on the 24th of November. The evidence had been taken down by the stenographic reporter appointed by the court, whose notes could not be read by any of the defendant's counsel. It required three days for the reporter to write them out. He completed this work within a few *days after the court adjourned, and more than once informed one of the counsel for defendant that the evidence was ready. The brief was not presented to the judge for approval until December 30th. The judge approved it on that day, and ordered it filed, subject to the right of plaintiff to object, if the time for filing had expired. It was filed on the 1st of January, 1877. The motion for new trial was filed on the 28th of December, 1S76. It was presented to the judge as early as the 16th of that month, on which day he signed an order upon it, requiring the plaintiff to show cause, as soon as counsel could be heard, why a new trial should not be granted. Service of the motion was acknowledged by plaintiff's counsel on the 21st of December, and on the 22d, one of the defendant's counsel mailed it at Cartersville, to another at Calhoun, with a request to file it. In the regular course of mail, it ought to have reached Calhoun on the same day. or the day following, but from some unknown cause, it was delayed until the 28th, the same day on which it was filed. At the next term of the court, (March term. 1877,) the motion came on to be heard. Counsel for plaintiff moved to dismiss it, on the ground that a brief of the evidence approved by the court had not been filed within the thirty days limited by the consent order. Besides resisting the motion to dismiss, counsel for defendant moved to amend by changing the motion for new trial into one, on the same grounds, then made as in extraordinary cases. The court dismissed the original motion, and refused a new trial on the extraordinary motion. Both these decisions are assigned as error.

On the day the verdict was rendered, the parti?s, by consent, cut loose from the strict law of new trials, find put themselves upon terms of their own choosing, the court, by an order entered on the minutes, giving its sanction to the com-pact. If the plaintiff had a right to require the brief of evidence, and the motion itself to be made out and filed at that term, he waived it. If the defendant had a right to postpone the filing of the motion and the brief until the *next term, that was waived on the part on the defendant. It was competent for the counsel to adopt a limitation law of their own, if the court interposed no objection. And the limitation which they voluntarily established was, thirty days after the adjournment of the court. Until that time expired, the defendant had a right, by contract, to make out and file a motion for new trial and a brief of the evidence. After the consent had been acted upon, the plaintiff could not have receded. Repudiation of the consent would have operated as a surprise upon the defendant, and the plaintiff would not have been allowed to retain an advantage...