Hunt v. Travelers' Ins. Co. of Hartford, Conn.

• Decision Date: 22 August 1911
• Parties: HUNT v. TRAVELERS' INS. CO. OF HARTFORD, CONN.
• Court: Georgia Supreme Court

72 S.E. 32

136 Ga. 766

HUNT v. TRAVELERS' INS. CO. OF HARTFORD, CONN.

Supreme Court of Georgia

August 22, 1911

Syllabus by the Court.

Where the presiding judge passes an order overruling a motion to dismiss a motion for a new trial, made by the respondent at a time when the judge had jurisdiction to pass on such motion to dismiss, and providing that the movant have until a named date, which is the first day of the next term, to present for approval a brief of the evidence, and the movant duly files and presents for approval such brief on that day, while the order overruling the motion to dismiss stands unreversed, the judge during such term or thereafter is without authority to dismiss the motion for new trial on another motion of the respondent based on the same grounds on which the former motion was made; such grounds being that movant in the motion for new trial had not presented for approval a brief of the evidence within the time specified in orders of the judge passed before the order overruling the motion to dismiss.

Error from Superior Court, Muscogee County; S. P. Gilbert, Judge.

Action by Mrs. S. B. Hunt against the Travelers' Insurance Company of Hartford, Conn. Judgment for defendant, and plaintiff brings error. Reversed.

Hatcher & Hatcher, for plaintiff in error.

C. E Battle and Howell Hollis, for defendant in error.

HOLDEN J.

The plaintiff in error sued the defendant in error, and during the May term, 1910, of the superior court a verdict and judgment were rendered in favor of the defendant. During that term, and within 30 days from the rendition of the verdict the plaintiff made a motion for a new trial, the grounds of which were approved; and during the same term, on May 23 1910, an order was passed by the court, directing that the motion be heard on August 1, 1910. This order further provided that, if the motion was not heard on that date, it should be heard at such "time and place in vacation as counsel may agree upon, under approval of the court, and upon failure to agree, then at such time and place as presiding judge may fix on the application of either party upon five days' notice to the opposite party, and that "movant have until 23d of July, 1910, to prepare and present for approval and filing a brief of the evidence." On July 23, 1910, in vacation, the presiding judge passed an order providing "that the time for preparing and presenting to the court her [movant's] brief of the evidence for approval be extended until the 1st day of August, 1910, at which time the court will approve the brief of evidence, *** and the same may then be filed." On August 1, 1910, during the August term of the court, the presiding judge passed an order reciting "that the plaintiff's counsel are not guilty of laches" in failing to present for approval a brief of the evidence, and ordering that the hearing of the motion "be continued until the 29th of August, 1910, and that plaintiff have until the 26th day of August, 1910, to prepare and present to the court her brief of evidence in the case for approval and filing, at which time said motion for new trial is set for hearing at chambers in Muscogee county, Ga." On August 29, 1910, in vacation, the presiding judge granted an order providing that the hearing of the motion be continued until the 27th day of September, 1910, "and that movant have until said hearing to prepare and present to the court for his approval and filing a brief of the evidence in said cause." This order recited that it was granted "without prejudice to either party." On September 27, 1910, in vacation, the judge granted an order reciting that on August 29, 1910, the respondent made a motion to dismiss the motion for a new trial, "upon the ground that no brief of evidence had been presented for approval by the court, and other grounds, as will appear by motion of that date, this motion was overruled, and further time was granted movant to prepare and file his brief of evidence." This order further recited: "On the 27th day of September, 1910, on the call of said case, counsel for the defendant appeared and announced to the court that the appearance for defendant was subject to a prior motion to dismiss, and to offer a motion to dismiss the motion for a new trial. This motion was also overruled, and movant granted until the 7th day of November, 1910, to complete and present for approval her brief of evidence, on which date said motion shall be heard and determined." During the November term of the court, the plaintiff filed in the clerk's office, and presented to the judge for approval, on November 7, 1910, a brief of the evidence. The motion "stood on the motion docket of said court, until the regular call of the motion docket during said November term, 1910, of said court, when it was called in its regular order for trial on the 30th day of November, 1910," at which time the court approved and ordered filed the brief of evidence and an amendment to the motion for a new trial. On November 30, 1910, while the November term of the court was in session, the motion for a new trial was called in its regular order on the motion docket, and respondent orally moved to dismiss the same, "because the brief of the evidence had not been approved by the court in terms of the orders passed in the cause." The court reserved his decision until December 8, 1910, when he rendered a judgment dismissing the motion for a new trial, which judgment contained, among other recitals, the following: "While this court feels assured that no error of law was committed, and counsel for movant having several times, on the various hearings, admitted that the evidence was sufficient to authorize the verdict rendered, yet, because the reasons which prevented the completion and filing of the brief of evidence appealed strongly to the court and seemed sufficient to excuse the failure, this court felt anxious to have the Supreme Court pass upon the important issues of law involved. Since the entire record has been submitted, the court is now convinced that it was without jurisdiction to pass any of the orders subsequent to the order dated May 23, 1910. Blackburn v. Alabama Midland Railroad Co., 116 Ga. 936, 43 S.E. 366. The motion is therefore necessarily, but regretfully, dismissed." To this judgment the movant e...