Cole v. Ill. Sewing Maoh. Co

• Decision Date: 20 January 1910
• Docket Number: (Nos. 1,876, 1,877.)
• Citation: 7 Ga.App. 338,66 S.E. 979
• Parties: COLE. v. ILLINOIS SEWING MAOH. CO. ILLINOIS SEWING MACH. CO. v. COLE.
• Court: Georgia Court of Appeals

7 Ga.App. 338

66 S.E. 979

COLE.

v.ILLINOIS SEWING MAOH. CO.

ILLINOIS SEWING MACH. CO.

v.COLE.

(Nos. 1, 876, 1, 877.)

Court of Appeals of Georgia.

Jan. 20, 1910.

Rehearing Denied Feb. 10, 1910.

1. Appeal and Error (§ 719^*)—Assignments of Error—Necessity.

This court has no authority to decide whether the trial court erred in directing a verdict, when there is no specific assignment of error, either pendente lite, in the motion for a new trial, or in the bill of exceptions made upon such direction.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 719.*]

2. New Trial (§ 155*) — Determination — "Day"—Term—Adjournment.

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 par-ticular case open until the expiration of the day to which the hearing of the motion has been adjourned, and until the expiration of that day (which means a day of 24 hours) the court has entire control and jurisdiction of the motion for a new trial, and in its discretion can grant any order that it sees proper relating thereto.

[Ed. Note—For other cases, see New Trial, Dec. Dig. | 155.*

For other definitions, see Words and Phrases, vol. 2, pp. 1832-1837; vol. 8, p. 7626.]

3. Bills and Notes (§ 520^2-*)—Verdict—Evidence.

As to at least a part of the recovery the verdict is contrary to the evidence.

[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 520.*]

4. Appeal and Error (§ 1144*)—Determination of Cause—Affirmance with Directions.

The power of this court to affirm judgments with direction should be exercised only in furtherance of ends of justice; and it will not be exercised where to leave the matter open seems likely to effectuate a fair hearing of the parties upon the merits of the transaction.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4479; Dec. Dig. § 1144.*]

5. Set-Off and Counterclaim (§ 19*) — Equitable Set-Off—Action at Law.

An individual defendant cannot, at law and in a city court, set up as a defense, even as against a nonresident plaintiff, a set-off held by a partnership of which he is a member. To allow such a defense would be to grant affirmative equitable relief, such as can be given only in a court of equity, with all parties in interest before the court.

[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. § 4; Dec. Dig. § 19.*]

(Syllabus by the Court.)

Error from City Court of Blakely; W. A. Jordan, Judge.

Action by the Illinois Sewing Machine Company against G. A. Cole. Judgment for plaintiff, and defendant brings error on two bills of exceptions. Reversed on both bills.

The Illinois Sewing Machine Company sued Cole as maker of certain promissory notes. The defendant admitted executing and delivering the notes to the plaintiff, and sought to avoid payment by pleading partial and total failure of consideration. At the conclusion of the evidence the court directed a verdict for the plaintiff. The defendant did not except pendente lite, but subsequently filed a motion for a new trial, based alone on the general statutory grounds. The bill of exceptions to the judgment overruling the motion for a new trial contains also an exception to the direction of the verdict, but was filed too late to reach this alleged error. The court adjourned the hearing of the motion for a new trial to a day in vacation, and on that day heard the motion and overruled it. After the order overruling the motion for new trial had been announced, but before it had been entered on the minutes of the court, and during the day to which the hearing of the motion had been adjourned, the movant filed a motion to vacate the order, so as to give him an opportunity to file an amendment to the motion for new trial, specifically excepting to the direction of the verdict. The court refused to vacate the order overruling the motion for a new trial, and this refusal is assigned as error.

J. R. Pottle, for plaintiff in error.

Jno. P. Ross and Glessner & Park, for defendant in error.

HILL, C. J. (after stating the facts as above). 1. The learned counsel for the plaintiff in error insists that this court is authorized to consider the question of the right of the trial court to direct a verdict under the evidence on the general grounds of the motion and without a specific assignment of error as to the direction of the verdict. This point is expressly ruled against him by the Supreme Court in Dickenson v. Stults, 120 Ga. 632, 48 S. E. 173, where it is held that "the Supreme Court has no authority to decide whether the trial court erred in directing a verdict where there is no assignment of error made upon such direction." Similar decisions were made by this court in Arnold v. Ragan, 5 Ga. App. 254, 62 S. E. 1052, and Crooker v. Hamilton, 3 Ga. App. 190, 59 S. E. 722. See, also, Rosenblatt v. State, 2 Ga. App. 650, 58 S. E. 1107.

2. The court refused to vacate the order overruling the motion for a new trial, holding that it was "without discretion in the matter, and had no power and jurisdiction to grant the motion." We do not concur in this opinion. We think the court did have the right, in its discretion, to vacate the order overruling the motion for a new trial at any time during the day to which the hearing of the motion had been adjourned. If the judgment overruling the motion for new trial had been rendered during the regular term, the question would not admit of doubt, for it is well settled that any judgment is within the control of the court during the term in which it was rendered. Now an order passed in term to hear a motion for a new trial in vacation keeps the term open, relatively to that case, until the motion shall have been decided (Herz v. Frank, 104 Ga. 638, 30 S. E. 797); and in Stone v. Taylor, 63 Ga. 309, the Supreme Court uses the following language: "The order, taken in term, to hear the motion in vacation, put the judge in full possession of the case at the time appointed, and continuances from time to time were had, so that there was no gap or break. It was as if the first day had been lengthened, or all the sittings had taken place at different hours of the same day. Looking at the judge as a court pro hac vice, he could, for sufficient cause, grant further time to perfect and file the brief of evidence. He had exactly the same power in that respectas If he had been sitting in term." The court, therefore, did not lose jurisdiction of the case or of the motion for a new trial until the term to which the motion had been adjourned was ended.

(a) Did the term end the moment the judge announced his decision on the motion for a new trial, or did it end at the end of the day to which the hearing of the motion for a new trial had been adjourned? There is some doubt as to the correct answer to...