Rogers v. Cherokee Iron & Railway Co.

• Decision Date: 17 April 1883
• Citation: 70 Ga. 717
• Parties: ROGERS v. CHEROKEE IRON AND RAILWAY COMPANY.
• Court: Georgia Supreme Court

70 Ga. 717

ROGERS v. CHEROKEE IRON AND RAILWAY COMPANY.

Supreme Court of Georgia.

April 17, 1883

February Term, 1883.

1. Where in a motion for new trial the movant is allowed until a certain day, time or term to prepare and file the motion and approved brief of evidence, the word " until" include such day, term or time, and if proper action be taken at that time, it is in season. 67 Ga. 765.

2. Where the respondent in the motion moved to dismiss it on the ground that the motion and brief of evidence were not approved and filed in time, but no point was made on the absence of a rule nisi or waiver thereof, the point cannot be raised for the first time in this court, as a reason for reversing the refusal to dismiss the motion. 69 Ga. 729.

( a. ) Besides, counsel for respondent were served with the motion, were present at the hearing, and participated in the proceedings, and this was a waiver of the rule nisi. 69 Ga. 782.

3. This was the first grant of a new trial, the evidence was conflicting, and there was no abuse of discretion in the judgment.

Judgment affirmed.

HALL, Justice.