East Tennessee, Virginia and Georgia R.R. v. Whitlock
| Decision Date | 26 January 1886 |
| Citation | 75 Ga. 77 |
| Parties | THE EAST TENNESSEE, VIRGINIA AND GEORGIA RAILROAD v. WHITLOCK, and vice versa; MCCULLOUGH v. NORRIE & JOHNSON, and vice versa |
| Court | Georgia Supreme Court |
October Term, 1885.
[Jackson C. J., not presiding, because of indisposition.]
A motion for new trial in extraordinary cases, as provided in §§3719, 3721 of the Code, was intended, in a great degree, to take the place of a bill in equity for new trial. The parties are allowed, by this motion, to do at law what could have been done only in equity before that time; and hence it must follow that such a motion must contain clearly and specifically all the grounds necessary to have been averred in a bill for new trial.
( a. ) Pending the term of court at which a trial took place, a motion for a new trial was prepared and presented to the judge, but opposing counsel stating that he desired time to examine the grounds, by permission of the judge, the papers were turned over to him for that purpose, and court was adjourned to as later day. Another adjournment followed from providential cause. At the time to which the court was last adjourned, the judge was absent, but not from providential or unavoidable cause, as stated by him. The clerk adjourned the court from Saturday until Monday, and then until Tuesday. The judge arrived on Tuesday, and the motion and brief of evidence were presented to him. The respondent moved to dismiss the motion, on the ground that the court was not in session, but had come to an end by operation of law. The judge overruled this motion, and afterwards corrected the brief of evidence, and approved it and the motion, and they were filed in office and overruled at a later day, to which he had deferred action. Both sides excepted. On the cross-bill of exceptions, because of the refusal to dismiss, the Supreme Court held that the motion for a new trial was not made in term-time, and thereupon leave was granted the plaintiff in error to withdraw the main bill of exceptions " " without prejudice." At the next term of the superior court, a motion for a new trial was made on substantially the same grounds as before, with the above facts set out as warranting an extraordinary motion. The judge overruled a motion to dismiss this motion for a new trial, certified the grounds, and overruled the motion:
Held, that the motion for a new trial so made should have been dismissed; but having been overruled, the judgment will be affirmed, although counsel for the plaintiff in error were active and vigilant, and it was no neglect or fault of theirs that the term of court was lost, the only thing which they might have done, which was not done, being to have had the original motion filed in court, so that it could have been pending and gone over to the next term.
New Trial. Practice in Superior Court. Before Judge MERSHON. Glynn Superior Court. May Term, 1885.
These were two motions for new trial on extraordinary grounds, made at the May term, 1885, of Glynn superior court. The verdict in the case of the E. T. Va. & Ga. Railroad was rendered on May 21, 1884; that in the case of Norrie & Johnson on June 20, 1884. The motions each contained allegations of error, as in an ordinary motion, and an extraordinary ground substantially the same in both cases, which was, in brief, as follows:
" That said court was adjourned from time to time subsequent to said verdict, and convened on the 25th day of June, 1884, for the purpose of preparing motions for new trial, approving briefs of evidence and other motion matters on which day counsel for defendant presented to the superior court of said county a brief of evidence and motion for new trial for approval of the brief of evidence and certificate of the truth of the grounds of motion for new trial and the granting of a rule nisi in said case, G. B. Mabry of counsel for plaintiff, having stated that the brief of evidence was satisfactory to him, when F. H. Harris, of counsel for plaintiff, stated that he desired time in which to examine the grounds of motion for new trial and brief of evidence in said case, when the judge of said court, Honorable Martin L. Mershon, presiding, stated that he would adjourn the court to a later day for the purpose of acting on said motion for new trial and brief of evidence, and would permit the counsel for plaintiff in said case to have the motion for new trial and brief of evidence in said case for examination, the time of said court being taken up on that day by the hearing of a motion to confirm a sale by the receiver of the property of Sloat, Bussell & Co., of Clinch county, Georgia, in which counsel from Savannah were present to argue the said motion; and that in pursuance of such statement from the said Judge M. L. Mershon, counsel for defendant in said case, Goodyear & Kay, turned over the brief of evidence, together with the rule nisi and motion for new trial in said case, to F. H. Harris, of counsel for plaintiff in said case, for examination by him."
That the court was then adjourned to July 10. On that and the following day, the judge was absent from providential cause and the court was adjourned, by an order from him, to July 19. On that day, a political convention was being held in the court-house, and the judge, seeing no opportunity to transact any business, declined to entertain any and adjourned court to Saturday, July 26. On that day, the judge was absent in Savannah. The clerk adjourned court to Monday, July 28, and then to Tuesday, when the judge appeared and opened court. Counsel for the movants procured the motions for new...
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