Myers v. Brooks

• Decision Date: 02 March 1920
• Docket Number: (No. 10931.)
• Citation: 24 Ga.App. 793,102 S.E. 369
• Parties: MYERS . v. BROOKS.
• Court: Georgia Court of Appeals

24 Ga.App. 793

102 S.E. 369

MYERS .

v.BROOKS.

(No. 10931.)

Court of Appeals of Georgia, Division No. 1.

March 2, 1920.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Action by U. S. Brooks against J. H. Myers.Judgment for plaintiff, and defendant brings error.Affirmed.

The bill of exceptions recites that—

"About 10 days after the said trial, to wit, on March 14, 1919, the judge of said court, the Hon. H. A. Mathews, in his office in the courthouse adjoining the superior court room, at Macon, Ga., in the presence of McDougald Nisbet, deputy clerk of said court, and G. S. Westcott, deputy sheriff of said county, in attendance upon the said judge and court, orally stated that the business of the February term, 1919, of Bibb superior court was concluded, and announced that the February term, 1919, was adjourned, and orally instructed the said deputy sheriff to formally announce the adjournment of said court.The said deputy sheriff did then and there formally announce the adjournment of said term of said court, which was the usual and customary manner of adjourning said court for many years past.The said judge then left Macon for his home in Ft. Valley, Ga., with no intention of returning to Macon for the purpose of transacting any further business of said February term of said court.All juries had been discharged for the said term.Thereafterwards, to wit, on March 15, 1919, the judge of said court, in his office in the city of Macon, signed a written order in which he undertook to revoke said oral order of adjournment, and therein he declared the February term, 1919, of Bibb superior court to be still in session, but in recess until the further order of court.At the time such written order was signed and entered by the said judge, no entry had been made on the minutes of the oral order of adjournment, no written order of adjournment had been made, signed, or entered, no other action taken looking towards adjournment of the said term of court, other than hereinbefore set out, except that the clerk of the court had written up the minutes of that term of the court and was, at the time the written order was presented to him, then ready to actually enter said oral order of adjournment upon the minutes, which was the customary arid usual manner of entering the order of adjournment in said court.After the signing of said written order and before any other had been made, signed, or entered, counsel for John H. Myers, defendant in the above stated case, on the same date, to wit, March 15, 1919, presented to the said judge, the Hon. H. A. Mathews, a motion for new trial in said case, upon which motion the said judge issued his rule nisi dated March 15, 1919, setting the hearing of said motion for 10 o'clock on the 5th day of April, 1919, and allowing until the actual hearing of the motion for the movant to present to the court a brief of evidence in said case, and to amend the said motion."

The hearing of the motion was continued from time to time until June 7th.The bill of exceptions further shows that—

"Respondent to said motion presented in writing a motion to dismiss the motion for new trial upon two main grounds, to wit:...