Johnston v. Simmons
| Decision Date | 26 February 1887 |
| Citation | 2 S.E. 469,77 Ga. 298 |
| Parties | JOHNSTON and others v. SIMMONS. |
| Court | Georgia Supreme Court |
Gustin & Hall and Hardeman & Davis, (by Harrison & Peeples,) for plaintiffs in error.
W. S Wallace, contra.
The question raised in this case is whether a motion therein for new trial was properly dismissed. These are the facts: At the September term, 1885, of Crawford superior court, a verdict was rendered in favor of the defendants in error against the plaintiffs in error. During the same term the plaintiffs in error filed a motion for new trial accompanied by a brief of the evidence approved by the court and a consent order was made providing that Judge SAMPSON W. HARRIS, before whom said case was tried, should take the motion with him, and pass upon the same "within the next thirty days, in vacation." The judge, for some reason not known, failed to decide the motion. At the March term, 1886, of said court, the Hon. JAMES T. WILLIS, judge of the Chattahoochee circuit, presiding, the defendants in error moved to dismiss said motion on the ground that Judge HARRIS had not determined it within the time prescribed by the order above mentioned. Plaintiffs in error, in resisting the motion to dismiss, showed, by an affidavit of Joseph H. Hall, Esq., one of their counsel, that they were in no manner chargeable with the failure of Judge HARRIS. The motion to dismiss was sustained, and this judgment is assigned as error.
We think the judgment complained of was erroneous. The motion for new trial was made during the term at which the verdict was found, and was therefore in time. Code, § 3719. There was filed with it a brief of the testimony in the cause, under the revision and approval of the judge. Rule Superior Court No. 49. When the term closed, there was pending, therefore, in the court, a motion for new trial, in which the movant had complied with every requisite of the law. The only thing to distinguish the motion from others of like character was that it might, under a consent order granted in term, be decided by the judge in vacation within a designated period. It seems to us that the only legal consequence of a failure by the judge to exercise the authority conferred upon him by such order would be to leave the motion still pending. We cannot understand how mere inaction on his part could result to the detriment of the plaintiffs in error. We presume no one would say that they could have been injured by an omission on his part to determine the motion in term-time. In that event, the judge would simply not have done that which by law he could have done. We see in the case at bar nothing more. Dozier v. Owen, 63 Ga. 541; Parker v. State, 74 Ga. 836.
The learned judge whose decision is now complained of did not for the moment discriminate between an unauthorized act of a judge in vacation in reference to a motion for a new trial and a failure to act. It is prescribed, in section 3719 of the Code, that "all applications for new trial, except in extraordinary cases, must be made during the term at which the trial was had, but may be heard, determined, and returned in vacation." It has been constantly held by this court that while a motion for new trial may be "heard, determined, and returned in vacation," an order to this end must be passed in term-time. Dozier v. Owen, 63 Ga. 541; Graddy v. Hightower, 1 Ga. 252; Johnson v. Bemis, 4 Ga. 157; Brinkley v. Buchanan, 55 Ga. 342; Walker v. Banks, 65 Ga. 20.
A necessary deduction from this ruling is that the terms of the order, when taken, must be observed in any hearing which occurs under it. When a movant for a new trial fails to take an essential step in the application, as the making of...
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