Dozier v. Owen

• Decision Date: 30 September 1879
• Citation: 63 Ga. 539
• Parties: Dozier. v. Owen et al.
• Court: Georgia Supreme Court

63 Ga. 539

Dozier. v. Owen et al.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

New trial. Practice in the Superior Court. Before Judge Crawford. Harris Superior Court. October Term, 1878.

Sufficiently reported in the opinion. C. T. Thornton; A. A. Dozier, for plaintiff in error, on refusal to dismiss motion for new trial, cited 59 Ga., 626; 60 Ib., 124; 57 Ib., 193; 8 Ib., 11; 5 Ib., 399; 3 Ib, 217. On grant of new trial, Graham on New Trials, 362, 408; 2 Arch. Prac, 222; 11 Ga., 203, 353; 13 Ib., 34; 41 Ib., 208, 295; 51 Ib., 33.

Blandford & Garrard; Willis & Willis, for defendants.

*Bleckley, Justice.

1. There was no error in refusing to dismiss the motion for a new trial. By order of court, passed with the consent of both parties, the motion was to be heard at a specified time and place, and the brief of evidence was to be filed, not before the hearing, but within a given number of days afterwards. Doubtless the stipulation and order in respect to the time of filing the brief were induced by the fact that the hearing was expected to take place at a distance from the clerk's office. When the time for the hearing arrived, counsel for both parties attended, and the judge was present. The counsel consented, in the presence of the judge, that the motion stand over to be heard in term, at an approaching adjourned term of Harris superior court, that court being the one in which the trial was had, and to which the case belonged. In this new arrangement nothing was said as to filing the brief of evidence before the actual hearing, and no formal order for continuing the motion over to the adjourned term was entered. When the adjourned term of Harris superior court arrived, the motion came up to be acted upon and disposed of. The brief of evidence, though approved by the judge, had not then been filed, and no offer was made to file it, but the approved brief was present in court, accessible to court and counsel. Now it was that counsel for the respondent in the motion for a new trial moved to dismiss it, the grounds urged being that there was no order of continuance entered so as to bring the hearing over to the adjourned term, and that the brief of evidence had not been filed.

The continuance was the act of the counsel as much as that of the judge, and was not to any time in vacation but to term. Would not the hearing, unless another time in vacation...