Gauldin v. Crawford
| Decision Date | 30 June 1860 |
| Citation | 30 Ga. 674 |
| Parties | GAULDIN. v. CRAWFORD. |
| Court | Georgia Supreme Court |
Motion to dismiss rule for New Trial, from Decatur county. Decided by Judge Allen, October Term, 1859.
An action on the case having been brought in favor of Milton Crawford, against John P. Gauldin, resulted in a verdict for the defendant.
The plaintiff then moved a rule for a new trial to be heard at the next, viz.: the October Term, 1859.
On hearing the rule, counsel for defendant moved to dismiss the same, on the following grounds:
1st. That the rule nisi issued in said case had not been served.
2d. That no brief of the evidence used on the trial of said case had been approved by the Court.
3d. The agreement of counsel as to said brief had not been entered on the minutes of said Court or otherwise authenticated.
4th. That no brief of the evidence used on said trial had been filed in said Court or in the Clerk's office thereof.
5th. That no notice of said application had been served on said Gauldin or his attorney.
It appears, from the bill of exceptions, that no twenty days' notice of the rule was served by the movant on the defendant, but that when the rule nisi was granted, defendant's counsel was present in Court; also, that a paper containing oral evidence, and referring to certain records, writings and documents therein specified (and which records, etc., it was therein agreed should be used as a part of the brief of evidence) had been agreed on and signed by counsel for the parties, hut had not been entered on the minutes of the Court or otherwise authenticated. It, however, appeared that counsel for Crawford had handed the paper to the Clerk, who endorsed thereon, "filed in office May 4, 1859, " andthat afterwards, during the term, said counsel had taken the same, with the papers referred to, out of the Clerk\'s office and kept the whole in his possession in Albany until the succeeding term. It did not appear that this brief of the evidence had been approved by the Court.
After hearing argument, the Court refused to dismiss the rule for a new trial on all the grounds stated.
Whereupon, counsel for defendant excepted, and assigns the same as error.
Bower, for plaintiff in error.
Warren & Warren, contra.
By the Court.—Lumpkin, J., delivering the opinion.
Was the Court right in refusing the motion to dismiss the application for a new trial in this case?
The motion was made on various grounds, 1st. That the rule had not been served; 2d, that no notice of the application had been served upon Gauldin or his attorney; 3d, that no brief of the evidence had been approved by the Court; 4th, that the agreement of counsel as to the brief of evidence had not been entered upon the minutes or otherwise authenticated; 5th, that no brief of evidence used on the trial of the case had been filed in the Court or the Clerk's office.
The Court refused the motion, but postponed the hearing to the next term of the Court.
The facts are these: A brief of the evidence was agreed upon by counsel in these words: "It is agreed that this is a brief of the evidence in this case, and the original interrogatories and the documentary evidence referred to in the brief, may be used whenever the brief of the evidence may be necessary.
Counsel for Gauldin have, by their agreement, excluded themselves from excepting to the manner in which the brief was made up, viz.: by reference to depositions and papers not incorporated in the brief or attached to it. They have consented that a reference to these papers shall not only be sufficient, but that the originals may be used whenever itshall become necessary. It is literally true, too, that the brief so made out and agreed upon was filed in the Clerk\'s office. The Clerk so certifies, and such is the fact. The complaint is. really, that so soon as this indorsement was made by the Clerk, the counsel for Crawford withdrew the papers from the Clerk\'s office, and that they had remained ever since in his possession, until the case was taken up to be argued.
Whatever may be the motive, this practice is wrong, and should not be allowed by the Courts. The original papers, made a part of the brief, should remain in the office, unless taken out temporarily or by the consent of the opposite party, or else copies should be procured. If there be any urgent necessity for withdrawing the originals, instead of leaving them in the office, which the parties were bound to do, let them insert copies in the brief.
It is true, that the agreement of counsel was not entered upon the Minutes. Does this justify a dismissal of the rule? This is not like the case cited from the Reports, where the Judge had to rely on his memory at a subsequent term. Here while the testimony was fresh in the recollection of the parties, they agree upon it and sign the agreement. Is anything more needed to secure the correctness and integrity of the proof? An order might be passed at any time directing this agreement to be entered upon the Minutes. Neither Courts nor. governments, nor any...
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State v. Arnold
...Ann. 1356, 14 So. 32; Krolage v. People, 224 Ill. 456, 8 Ann. Cas. 235, 79 N.E. 570; Deloach v. State, 77 Miss. 691, 27 So. 618; Gauldin v. Crawford, 30 Ga. 674; Dobosky State, 183 Ind. 488, 109 N.E. 742; People v. McCrory, 41 Cal. 458; People v. Merhige, 212 Mich. 601, 180 N.W. 418; Pope v......
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Griffin v. State
... ... bring error. Reversed ... Hamilton ... McWhorter, Jr., of Lexington, W. W. Armistead, of Crawford, ... Thos. J. Shackelford and Holden & Shackelford, all of Athens, ... and Saml. H. Sibley, of Union Point, for plaintiff in error ... Griffin. H ... fraud, or even by mistake, he ought to be allowed to withdraw ... the plea. The law favors a trial on the merits. Gauldin ... v. Crawford, 30 Ga. 674 (5). It does not encourage ... confessions of guilt, either in or out of court. Affirmative ... action on the part of ... ...
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Hamm v. State
...making a record which demonstrates whether the plea was freely and voluntarily entered. The law favors a trial on the marits. Gauldin v. Grawford, 30 Ga. 674(5); Rowland v. State, 72 Ga.App. 793, 35 S.E.2d 372. 'In some states statutes have been enacted requiring the judge to admonish the p......
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Pass v. State
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