Scarbrough v. Bell
| Decision Date | 12 November 1941 |
| Docket Number | 13889. |
| Citation | 17 S.E.2d 732,193 Ga. 255 |
| Parties | SCARBROUGH v. BELL. |
| Court | Georgia Supreme Court |
Rehearing Denied Dec. 2, 1941.
P. Q. Bryan, of Moultrie, for plaintiff in error.
Hoyt H. Whelchel and Robert E. Cheshire, both of Moultrie, for defendant in error.
Syllabus Opinion by the Court.
1. 'Where, by an order entered in term, the hearing of a motion for a new trial is set for a particular day in vacation, that day, relatively to such motion, is, in legal contemplation, a continuation of the term at which the order was granted.' Atlanta, Knoxville & Northern Railway Co. v. Strickland, 114 Ga. 998, 41 S.E. 501; Code of 1882, § 3719; Code of 1933, § 70-301; Ga.L. 1889, p. 83; Graddy v. Hightower, 1 Ga. 252; Johnson v. Bemis, 4 Ga. 157; Herz v. Frank, 104 Ga. 638, 30 S.E. 797; Eady v. Atlantic Coast Line Railroad Co., 129 Ga 363, 58 S.E. 895.
(a) Whether the order for hearing in vacation does or does not fix a definite time for hearing, the trial of the parent case must have been completed during the term by rendition of the verdict. The sole office of the motion for a new trial is to set aside the verdict, and such motion must be filed during the term. Code, § 70-301. Retention of jurisdiction to hear the motion for a new trial after the term has ended extends only to such matters as may properly become a part of the motion for a new trial. As to matters pertaining to the main case, apart from the motion for new trial, jurisdiction in vacation could attach no more than it could, after grant of a new trial, to proceed in vacation do novo with organization of a jury and a second trial of the main case.
(b) Allowance of an amendment to an affidavit of illegality to a mortgage foreclosure, and refusal to overrule a motion to dismiss such affidavit of illegality, to which exceptions pendente lite were duly filed, may not be complained of in a motion for a new trial. Nicholls v. Popwell, 80 Ga 604, 6 S.E. 21; Willbanks v. Untriner, 98 Ga. 801 25 S.E. 841; Tompkins v. American Land Co., 139 Ga 377(2), 77 S.E. 623. Consequently, an order granted during the term at which a motion for a new trial is filed, to extend the time of hearing the motion beyond the term and into vacation, will not in legal contemplation extend the term as to the original case or as to such allowance of amendment or refusal of a motion to dismiss the affidavit of illegality, so as to afford...
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Fowler v. Grimes, 14859.
...had been affirmed. McCandless v. Conley, 115 Ga. 48, 41 S.E. 256; Miraglia v. Bryson, 152 Ga. 828(2), 111 S.E. 655; Scarbrough v. Bell, 193 Ga. 255, 17 S.E.2d 732. Such was the situation at the time of the order of February 21, 1943, and so, if the accused had been present, nothing that he ......
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Davis v. Buie
... ... 565; Zachry v. Industrial Loan & Investment Co., 182 Ga ... 738(5), 186 S.E. 832; Page v. Brown, 192 Ga. 398(3), ... 15 S.E.2d 506; Scarbrough v. Bell, 193 Ga. 255(1-b), ... 17 S.E.2d 732. Accordingly, the first special ground can not ... be considered ... Furthermore, ... ...
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Davis v. Buie, 14852.
...v. Industrial Loan & Investment Co., 182 Ga. 738(5), 186 S.E. 832; Page v. Brown, 192 Ga. 398(3), 15 S.E.2d 506; Scarbrough v. Bell, 193 Ga. 255(l-b), 17 S.E.2d 732. Accordingly, the first special ground can not be considered. Furthermore, the defendants in this case were not parties at int......
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Fowler v. Grimes
... ... Vandiviere, Sol ... Gen., John S. Wood, both of Canton, and E. A. Stephens, of ... Atlanta, for defendant in error ... BELL, ... Chief Justice ... Walter ... Fowler filed an application for the writ of habeas corpus ... against J. M. Mount as sheriff ... McCandless v ... Conley, 115 Ga. 48, 41 S.E. 256; Miraglia v ... Bryson, 152 Ga. 828(2), 111 S.E. 655; Scarbrough v ... Bell, 193 Ga. 255, 17 S.E.2d 732. Such was the situation ... at the time of the order of February 21, 1943, and so, if the ... accused had ... ...