Selma v. Keith

• Decision Date: 31 July 1874
• Citation: 53 Ga. 178
• Parties: Selma, Rome and Dalton Railroad Company, plaintiff in error. v. George W. Keith, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 178

Selma, Rome and Dalton Railroad Company, plaintiff in error. v. George W. Keith, defendant in error.

Supreme Court of the State of Georgia

(.Atlanta, July Term, 1874.)

*New trial. Practice in the Superior Court. Railroads. Damages. Evidence. Before Judge Underwood. Whitfield county. At Chambers. May 18th, 1874. For the facts of this case, see the decision.

Printup & Fouche; J. E. Shumate, for plaintiff in error.

Johnson & McCamy, for defendant.

Warner, Chief Justice.

This case came before the court below on an appeal from the assessment of damages for locating the defendant's road on the plaintiff's land under the provisions of its charter. On the trial of the appeal the jury found a verdict for the plaintifffor $2,580 64. The defendant made a motion for a new trial on the several grounds set forth therein, which was overruled by the court, and the defendant excepted.

1. When the motion for a new trial came on to be heard, the plaintiff made a motion to dismiss it on the ground that a brief of the evidence had not been filed in the clerk's office within the sixty days allowed by the order of the court for that purpose. The presiding judge, before whom the motion was heard at chambers, after hearing the statement of counsel on both sides in relation to the matter, overruled the motion to dismiss, and the plaintiff excepted. The brief of the evidence was made out and agreed to, and signed by counsel on both sides within the time allowed by the first order of the court. It was not convenient for the judge to hear the motion within the time allowed, but he approved the brief of the evidence within the time allowed by the first order, and ordered the same to be filed without limit as to time; and the brief of the evidence was in fact filed on the 13th of January, 1874, but not within the sixty days allowed by the first order. The judge had appointed the 13th day of Janu ary to hear the motion, but from some cause it was not heard on that day, but *was finally heard on the 18th of May, 1874. After the time allowed for filing the brief of the evidence had expired by the first order, another order was made in the case by the consent of the plaintiff's counsel, to-wit; on the 18th day of April, 1874, that the motion for new trial should be heard before Judge Underwood, who presided on the trial of the case, in vacation, at such time as would suit him to hear it, without any objection or protest at that time, that the brief of the evidence had not been filed in time. When the motion came on to be heard the brief of the evidence had been filed, and the judge having passed a second order for its filing, after his approval of it, without limitation of time, and it having been filed in pursuance of that order within a reasonable time thereafter, and no harm having been done to the plaintiff, either by surprise or otherwise, that we can discover, we will not control the discretion of the presiding judge in refusing to dismiss the motion, the more especially as the plaintiff's counsel made no objection or protest that the brief of evidence had not been filed in time, when they consented to the order of the 18th of April, that the motion should be heard in vacation by Judge Underwood, when it should suit him to hear it. It was the duty of the plaintiff's counsel to have protested then, or to have refused their assent to the granting that order for the reason that the brief of evidence had not been filed in time, if they intended to insist upon it at the hearing of the motion. If a party fails to speak when it is his...