DeKalb County v. McFarland, 25723

• Decision Date: 07 May 1970
• Docket Number: No. 25723,25723
• Citation: 226 Ga. 321,175 S.E.2d 20
• Parties: DeKALB COUNTY v. Martin McFARLAND et al.
• Court: Georgia Supreme Court

Page 20

175 S.E.2d 20

226 Ga. 321

DeKALB COUNTY v. Martin McFARLAND et al.

No. 25723.

Supreme Court of Georgia.

May 7, 1970.

Syllabus by the Court

Where the trial court sets a hearing on a motion by a party for a judgment notwithstanding a mistrial in which order the court allows the movant until a final hearing on the motion to present to the court a transcript of the evidence, and in two subsequent orders granting 30 day extensions of time for the hearing, the court omits from the orders the provision that the movant could have until the final hearing to present the transcript of evidence and provides that 'within the interim' the appellant could present the transcript of evidence, the time within which the movant could present the transcript was 30 days from the granting of the last order setting a hearing on the motion. Since the movant did not present a transcript of the evidence within such time the court lost jurisdiction of the motion and erred in passing thereon and denying it.

George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellant.

Murphy, McFarland & Turoff, Martin McFarland, Atlanta, William Zachary, Sr., Decatur, for appellees.

FELTON, Justice.

This is the third appearance of this case in this court. DeKalb County v. McFarland et al., 223 Ga. 196, 154 S.E.2d 203; McFarland v. DeKalb County, et al., 224 Ga. 618, 163 S.E.2d 827. On the second trial of the case the jury failed to reach a verdict. Each of the three parties filed a motion for a judgment notwithstanding the mistrial. This case is an appeal by the County of DeKalb from the judgment denying its motion for a judgment notwithstanding the mistrial. DeKalb County filed three motions to extend the hearing dates set for its motion. Its first motion to extend the time for the hearing continued the hearing until May 14, 1969. This order provided as follows: 'In the meantime, and until further of final hearing on said motion, whenever the same may be had, movant is allowed to amend and perfect the aforementioned motion.' (Emphasis supplied). Two additional orders extending the time for the hearing were granted the County of DeKalb. In each the date for the hearing is set for thirty days from the date of the order. Each of the second and third orders provides: 'In the interim, the defendant, DeKalb County, Georgia, is allowed to amend his (sic) motion and to prepare and present for approval a brief of evidence in said case.' (Emphasis supplied). The provision that DeKalb County might have until the final hearing was not included in the last two orders extending the time of the hearing for thirty days only. While under the old practice, where the court in its first order setting such a motion for a hearing the reservation of jurisdiction until the final hearing was not lessened or affected by a mere extension of the time of hearing (Georgia Procedure and Practice, Leverett, Hall, Christopher, Davis and Shulman, § 22-6 p. 502, note 219) still, since the court had reserved full jurisdiction by the first order the same full jurisdiction continued until the time of the issuance of the following orders at which time the court had jurisdiction to limit, as to future hearings, the time within which the brief of evidence or transcript might be presented. In this case the court...