Napier v. Heilker

• Decision Date: 02 April 1902
• Citation: 41 S.E. 689,115 Ga. 168
• Parties: NAPIER v. HEILKER
• Court: Georgia Supreme Court

41 S.E. 689

115 Ga. 168

NAPIER v. HEILKER

Supreme Court of Georgia

April 2, 1902

Syllabus by the Court.

Under the facts appearing in the record, the court erred in dismissing the motion for new trial.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by B. R. Napier against A. Heilker. Verdict for defendant. Plaintiff moved for a new trial. From an order dismissing the motion, he brings error. Reversed.

A. L Dasher and B. J. Dasher, for plaintiff in error.

Steed & Ryals, for defendant in error.

COBB J.

At the November term, 1900, of the superior court of Bibb county the case of Napier v. Heilker came on to be tried, and resulted in a verdict in favor of the defendant. On December 8, 1900, during the term at which the verdict was rendered the plaintiff filed a motion for a new trial, and a rule nisi was issued thereon requiring the defendant to show cause "in the superior court of Bibb county" on December 19, 1900, why the motion should not be granted; and it was therein ordered "that movant have till said hearing to present to the court for approval a brief of the evidence in said case." On December 19, 1900, the court passed an order, which, after reciting that the motion had been by previous order set for a hearing on that day, and sufficient cause shown for a postponement, provided that the hearing be postponed, and the motion set for a hearing on the "27th day of December at Bibb superior court room," and it was further ordered "that movant have until said hearing" to present to the court for approval a brief of the evidence. The bill of exceptions recites that "on December 27th, attorneys for both parties being present, the hearing of said motion for new trial was again passed, because the stenographer had not furnished his report of the evidence, on motion of attorney for plaintiff, to some convenient time, which would be agreed upon by the court and counsel." It does not appear that any written order was passed on this day postponing the hearing of the motion. It appears that on the 29th day of June, 1901, the motion for new trial came on for a hearing. Defendant's attorney moved to dismiss the motion for new trial on the ground that a brief of the evidence had not been filed as required by law, which motion was granted by the court. Plaintiff tendered a brief of the evidence at the hearing on the 29th day of June, 1901, and asked leave to file the same, which was objected to by defendant's counsel, and a motion made by defendant's counsel to dismiss the motion because the brief of evidence had not been filed according to law. The court sustained the motion to dismiss the motion for a new trial, and this judgment is assigned as error.

The order dismissing the motion for a new trial recites that no brief of evidence was filed by the 19th day of December 1900, or by the 27th day of December, 1900, or presented to the court on those dates, as required by the orders of the court, and no brief of evidence had been filed prior to the 29th of June, 1901, though on that day what purported to be a brief of the evidence in the case was tendered to the court. It does not appear from the record or the bill of exceptions whether the 29th of June, 1901, was in vacation or during term time. Neither does it distinctly appear whether the 19th and the 27th of December, 1900, were in term time or in vacation. The rule nisi being returnable on the 19th day of December, "in the superior court of Bibb county," would seem to indicate that it was anticipated at the time of the passage of that order that that day would be in term. The language of the order passed December 19th, which fixed the 27th of December as the time for the hearing of the motion, which was to be had at "Bibb superior court room," would indicate that that day would not be in term; for, if in term, it would have been unnecessary to fix the place at which the hearing was to be had. The time fixed by law for the sessions of Bibb superior court to begin are the third Monday in April and the first Monday in November, and that court may sit continuously from the beginning of one term until within five days of the beginning of the next. Civ. Code, § 4346. The three dates involved in the present case may each have been in term....