Pease v. Pease

• Decision Date: 28 February 1881
• Citation: 66 Ga. 277
• Parties: Pease. vs. Pease.
• Court: Georgia Supreme Court

66 Ga. 277

Pease. vs. Pease.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Practice in the Superior Court. New Trial. Before Judge Fleming. Mcintosh County. At Chambers. August 19th, 1880.

Reported in the decision.

Meldrim & Fraser; W. U.Garrard, for plaintiff in error.

W. A. Way; R. E. Lester, for defendant.

Speer, Justice.

Augusta J. Pease made application for a year's support and at the November term, 1879, of Mcintosh superiorcourt the case was tried on the appeal and verdict rendered for the plaintiff. The defendant below filed a motion for a new trial, and during the term of the court (on the 29th of November, 1879,) took an order "that the motion for a new trial be heard and decided in vacation on ten days\' notice by either party to the other, and that the movant have sixty days in which to file a brief of evidence, and that either party shall have the right to file bill of exceptions to the judgment on motion for new trial, within thirty days from the filing of same in the clerk\'s office of this court, and that this order operate as a supersedeas."

It further appears that the brief of evidence on the same day was filed in the clerk's office for revision and approval. This brief of evidence after this (but at what time the record does not disclose), passed into the possession of the attorneys for the defendant in error and was received back by the attorneys for plaintiff in error, on the third day of August, 1880, without correction or agreement. The same being returned to attorneys for defendant in error for correction or agreement, said attorneys on the 6th of August, 1880, delivered to attorneys for plaintiff in error a new and different brief of evidence. On the following day, the 7th of August, 1880, counsel for plaintiff in error sent both of these briefs to the judge with the request that he revise and approve the movant's brief of evidence and decide the motion upon written argument then submitted. The judge refused to revise and approve the brief of evidence, and dismissed the motion for a new trial on the ground "that the brief of evidence was not filed under the revision and approval of the court, and had not been submitted for revision and approval within sixty days from the adjournment of the court, as required by the order of the court." To this decision dismissing said motion the plaintiff in error excepted.

In the case of the Western & Atlantic Railroad Com- pany vs. Tillman W. Johnson, 59 Ga., 626, this court ruled, "If instead of resting on and pursuing the strict law of new trials, a party enters into a consent order to file his motion, within a given time after the adjournment of the court, and to file an approved brief of the evidence within the same time, he must abide by his bargain. Time is of the essence of the contract, and an excuse for...