Thompson v. Davison

• Decision Date: 27 March 1901
• Citation: 38 S.E. 306,113 Ga. 109
• Parties: THOMPSON v. DAVISON et al.
• Court: Georgia Supreme Court

38 S.E. 306

113 Ga. 109

THOMPSON v. DAVISON et al.

Supreme Court of Georgia

March 27, 1901

Syllabus by the Court.

When at the hearing in vacation of a motion for a new trial an order is passed granting a new trial unless the plaintiffs will within 30 days, write off a certain amount from the verdict and this is not done within the time named, a new trial in the case results, and the court has no authority at a term subsequently held to pass an order allowing the plaintiffs to write off the amount nunc pro tunc. The above is true notwithstanding counsel for both parties were under the impression that there had been an actual writing off, and each had acted on this supposition.

Error from superior court, Warren county; S. Reese, Judge.

Action by Davison & Fargo against John Thompson. Judgment for plaintiffs. Defendant brings error. Reversed.

P. B Johnson and E. P. Davis, for plaintiff in error.

Thos. E. Watson, for defendants in error.

COBB J.

Davison & Fargo sued Thompson in the superior court of Warren county. At the April term, 1898, of that court the case was tried and resulted in a verdict in favor of plaintiffs for $805 principal, and $15.05 interest to April 23, 1898. A motion for a new trial was filed in due time by the defendant, and by an order passed in term it was provided that the motion should be heard in vacation on June 20, 1898. The hearing of the motion was, for different causes, duly and legally continued until August 30, 1898, when the same was heard, and the judge passed the following order: "This motion for a new trial came on to be heard under an order taken at the regular April term, 1898, of Warren superior court, and subsequent agreement of counsel. Now, after carefully considering the same, it is ordered, adjudged, and considered that a new trial be granted and the verdict and the judgment be set aside unless the plaintiff, within thirty days, writes off said verdict and judgment all except six hundred and eighty-three dollars and twenty-six cents principal, and fifteen dollars and five cents interest to April 23, 1898, in which last-named event the motion for new trial is refused, and a new trial denied." To this order the defendant excepted, and brought the case to this court. Thompson v. Davison, 107 Ga. 238, 33 S.E. 47. On April 20, 1899, the writ of error was dismissed; it being held that "an exception to a judgment granting a new trial unless the prevailing party complies with a specified condition will not be considered by this court when the plaintiff in error makes it appear on the argument here that, because of the failure of the opposite party to avail himself of the condition, a new trial must actually result." At the October term, 1899, of the superior court the remittitur was filed, and the judgment of this court was made the judgment of the superior court. The "case was continued on the docket of the superior court" until the April term, 1900, when it was called for trial, and the plaintiffs filed a "petition asking the court to permit them to write off the verdict as required by the judge's order in passing upon the motion nunc pro tunc." The court overruled a demurrer to this petition, and proceeded to hear testimony on what was the agreement between counsel as to the matter of complying with the judge's order in reference to writing off a portion of the verdict. The evidence thus introduced clearly establishes that counsel for plaintiffs had determined to write off from the verdict the amount specified in the judge's order in order to prevent the granting of a new trial, and that it was supposed that there had been an actual writing off by one of the counsel who is now dead. That there never was any writing off clearly appears, but the...