Atlanta, K. & N. Ry. Co. v. Strickland

• Citation: 41 S.E. 501,114 Ga. 998
• Parties: ATLANTA, K. & N. RY. CO. v. STRICKLAND et al.
• Decision Date: 18 February 1902
• Court: Georgia Supreme Court

41 S.E. 501

114 Ga. 998

ATLANTA, K. & N. RY. CO. v. STRICKLAND et al.

Supreme Court of Georgia

February 18, 1902

Syllabus by the Court.

1. Where, by an order entered in term, the hearing of a motion for a new trial is set for a particular day in vacation, that day, relatively to such motion, is, in legal contemplation, a continuation of the term at which the order was granted; and if the motion is not, at the time thus fixed, either heard on its merits or dismissed, it must, by express written order be continued to some subsequent day, or else it will go over to the next term of the court in which it was made, unless it be in the meantime disposed of under the provisions of Civ Code, §§ 4323, 4324.

2. Neither an unwritten agreement by counsel to postpone the hearing nor their acquiescence in an oral announcement of a postponement made by the judge on the day above indicated will keep the court thereafter open for further proceedings upon the motion.

3. Where, on the day thus set for the hearing of a motion for a new trial, there is no action with request to the same except an oral announcement by the judge that he will take it up on some other day, and he accordingly does so, and then signs a written order setting the hearing of the motion for a still later day in vacation, such order is coram non judice. If therefore, on the day last set, the judge signs an order purporting to dismiss the motion, the same is likewise void for want of jurisdiction. It follows that the judge is also on that day without jurisdiction to entertain or pass upon a motion to reinstate the motion for a new trial; that an order then passed, purporting to overrule a motion to reinstate, is void; and that, consequently, the motion for a new trial is still pending, and remains in court to be disposed of as hereinbefore indicated. Little, J., dissenting.

4. The motion for a new trial in the present case was not set for a hearing under the above-cited sections of the Code (sections 4323, 4324), for there is nothing whatever in the record to indicate that any application was made or notice given by counsel as therein prescribed, or that either court or counsel took any action thereunder. Consequently, the jurisdiction which the judge assumed and undertook to exercise was not derived from these provisions of the law.

5. The judge having no jurisdiction to pass the order setting the motion for a hearing on the day on which the order of dismissal was granted, nor jurisdiction on that day to consider the motion for new trial, it was error to order the motion dismissed.

Error from superior court, Pickens county; Geo. F. Gober, Judge.

Action by Roy Strickland and others against the Atlanta, Knoxville & Northern Railway Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Little, J., dissenting.

Smith, Hammond & Smith, for plaintiff in error.

Morris & Green and F. C. Tate, for defendants in error.

SIMMONS C.J.

It appears from the record that this case was tried at the April term, 1901, of Pickens superior court. The jury having returned a verdict for the plaintiffs, the defendant company made, during the term, a motion for a new trial. As the brief of evidence could not be made out before the adjournment of the term, an order was taken setting down the hearing of the motion for new trial on May 20, 1901, at Ellijay, in Gilmer county. On that day counsel for the movant appeared, but the leading counsel for the respondents was absent on account of sickness. The judge refused to hear the case on that day, but announced that he would take it up during the week. On the following day the respondents' leading counsel appeared, and moved to dismiss the motion for new trial, because the brief of evidence had not been perfected. The judge declined to dismiss the motion, but passed an order on May 21st setting the motion down for a hearing at Blue Ridge, in Fannin county, on May 27th, at 10 o'clock a. m. On that day, at 11 o'clock a. m., counsel for the respondents, in the absence of counsel for the movant, moved to dismiss the motion, on the ground that the brief of evidence had not been filed. This motion was granted by the judge. Thereafter, on the same day, movant's counsel moved to reinstate the motion, assigning various reasons therefor, which, under the view we take of the case, it is unnecessary to mention. The judge refused to reinstate the motion, and movant's counsel filed a bill of exceptions complaining of the dismissal of the motion and of the refusal to reinstate it. The exceptions to the dismissal of the motion are, in substance, that the court had no jurisdiction on May 21st to pass an order setting the hearing for a later day, as the day set for the hearing of the motion had then already passed without action thereon, or any order continuing the hearing or setting it for May 21st, or any other day.

1. We think that the court erred in dismissing the motion for new trial. This court has in several cases held, where an order was taken in term giving the judge power and jurisdiction to hear and determine such a motion on a named day in vacation that the order so taken was a continuation of the term of the court, relatively to that particular case, to the day named. The latest decision upon this point is that of Herz v. Frank, 104 Ga. 638, 30 S.E. 797, in which it was decided that "an order passed in term setting the hearing of a motion for a new trial in vacation in effect keeps the term, relatively to that particular case, open until such motion shall have been decided." This being so, it was held in that case that exceptions pendente lite could be filed to any ruling or decision made by the judge in vacation, and while the motion pending, although the statute at that time declared that such exceptions should be filed in term. This ruling was predicated upon the fact that the court was still open relatively to that particular case, and that the defendant in that case could have filed exceptions pendente lite to a decree rendered by the judge under the order taken in term giving him the power to render the decree in vacation. Under the authority of that decision and those cited therein, we hold that, relatively to the motion for new trial in the present case, Pickens superior court was in session on May 20, 1901. On that day the judge had the same power with regard to this case that he would have had in term time. Was this power confined to that particular day, or, when the judge failed to hear or to dismiss the motion on that day, did his jurisdiction continue without any order to the following day? In other words, was the judge's oral announcement of May 20th that he would hear the case on some other day during the week sufficient to continue the term of Pickens superior court, relatively to the motion, to the next day? Counsel for the defendants in error contended that under Civ. Code, § 5485, the oral announcement was sufficient. That section is as follows: "Where an order is taken to hear a motion for a new trial in vacation, the brief of evidence must be presented for approval within the time fixed by the order, or else the motion will be dismissed. At the time fixed for the hearing, the judge may finally approve the motion and brief, with all amendments thereto, and pass on the motion, with the right to either party to except as in term time; but the judge in his discretion, before or at that time, may adjourn the hearing to another date in vacation, with like power, or until the next term. Where through no fault of the movant a motion is not heard in vacation, or where a hearing is adjourned to the next term, the motion stands for hearing in term as if no order had been taken." This section is a new one, and is partly codified from the cases of Johnston v. Simmons, 77 Ga. 298, 2 S.E. 469, Railroad Co. v. Huggins, 89 Ga. 494, 15 S.E. 848, and Turner v. Cates, 90 Ga. 745, 16 S.E. 971. None of these cases applies to the power of the judge to continue a case set for a named day in vacation by a mere oral announcement. The case of Johnston v. Simmons simply decides that, if the motion is set for a hearing in vacation, and nothing is done with it by the judge, it goes, by operation of law, back to term. In the case of Railroad Co. v. Huggins it appears that all the orders taken were in term, the court having been adjourned from day to day, and the orders taken before adjournment. In Turner v. Cates the motion was set for hearing in vacation, and was continued from time to time, but was not finally heard until the next term, when it was decided in term time. Lumpkin, P.J., in discussing the continuances, said that the judge had the power to continue the motion from time to time, but he did not say that this could be done orally. Whether the continuances were made by a written order or orally does not appear from the case as reported, but it does appear that the motion was not heard or decided in vacation at all, but in term. We think that the provision in the Code section that the judge "may adjourn the hearing to another date in vacation" must be taken as meaning that the judge may so adjourn the hearing in a legal and proper manner. If, before, the judge could not so...