Trammell v. Throgmorton

• Decision Date: 11 May 1954
• Docket Number: No. 18507,18507
• Citation: 210 Ga. 659,82 S.E.2d 140
• Parties: TRAMMELL v. THROGMORTON.
• Court: Georgia Supreme Court

Page 140

82 S.E.2d 140

210 Ga. 659

TRAMMELL v. THROGMORTON.

No. 18507.

Supreme Court of Georgia.

May 11, 1954.

Rehearing Denied May 31, 1954.

Syllabus by the Court.

As required by Code, § 70-306, the opposite party in all applications for new trial must be served with a copy of the rule nisi, unless such copy is waived. In this case, the opposite party, after receiving a copy of the motion for new trial and a copy of the rule nisi, acknowledged due and legal service of the unfiled motion for new trial and rule nisi; and a waiver of service as to such motion and rule nisi, which were later and within the time prescribed by law filed with the clerk of the trial court, resulted therefrom and the Court of Appeals erred in holding to the contrary.

Hardin & McCamy, Dalton, for plaintiff in error.

Adams & McDonald, Dalton, for defendant in error.

CANDLER, Justice.

Mrs. Matthews, now Mrs. Throgmorton, sued L. N. Trammell, trading as L. N. Trammell Construction Company, for a stated amount as damages, alleging that he had neligently killed her husband. A jury on October 11, 1952, by its verdict awarded the plaintiff $25,000 and a judgment for that amount was entered on October 13, 1952. On October 15, 1952, the defendant moved for a new trial and presented his application therefor to the presiding judge, who on that day signed a rule nisi requiring the plaintiff to show cause before him on January 19, 1953, why the motion should not be granted. In the order or rule nisi the judge directed that the plaintiff be served with a copy of the motion for new trial and with a copy of the rule nisi; and, by the terms of the order or rule nisi, he also granted a supersedeas until further order of the court. Counsel for the plaintiff signed the following acknowledgment of service or waiver thereof, which was written on the motion for new trial, the rule nisi, and the supersedeas: 'Due and legal service of the within motion and order acknowledged; copy received. This the 16 day of October, 1952.' The motion, the rule nisi, the supersedeas, and the acknowledgment of service were filed in the clerk's office of the trial court on October 18, 1952. On January 19, 1953, and on an ex parte motion by the movant the court continued the hearing on the motion for new trial and fixed March 10, 1953, as a new date on which it would hear the motion. On the order continuing the hearing and fixing a new date therefor, counsel for the plaintiff signed the following: 'Service of the within order is hereby acknowledged; copy received, said order being obtained by movant ex parte. This the 19 day of January, 1953.' When the motion for new trial came on for hearing on March 10, 1953, the respondent Mrs. Matthews, now Mrs. Throgmorton, moved to dismiss it on the ground that she had neither been duly and legally served with the motion for new trial nor had service of the motion been waived by her. Her motion to dismiss, after being heard, was denied. She excepted pendente lite. A new trial was granted by the trial judge, and in a bill of exceptions, which was timely sued out to the Court of Appeals, error was assigned by the plaintiff on the pendente lite exceptions and on the judgment granting a new trial.

The Court of Appeals, with Chief Judge Sutton and Presiding Judge Gardner dissenting, reversed the trial court and in doing so held that a motion for new trial, until it is actually filed in the office of the clerk of the court rendering the judgment complained of is a mere private paper which has no existence in contemplation of law, and any attempt to serve it or procure an acknowledgment of service on it before it is so filed is a nullity; that the entry indorsed on the motion for new trial, which the plaintiff's counsel signed did not constitute a waiver of the required service; such entry being, at most, only notice to the plaintiff of the movant's intention to apply on a given date for a hearing on his motion for new trial, but not of his application for such hearing. Throgmorton v. Trammell, 89 Ga.App. 466, 79 S.E.2d 574. The application for certiorari, which we granted, assigns error on that ruling and on that ruling only. Consequently, under Certiorari Rule 45, Code, § 24-4549, this court may and will consider only the question raised in the application for the writ of certiorari. Louisville & Nashville R. Co. v. Tomlin, 161 Ga. 749, 761, 132 S.E. 90; Hall v. State, 202 Ga. 619, 44 S.E.2d 234; Siegel v. State, 206 Ga. 252(1), 56 S.E.2d 512.

In all applications for new trial the opposite party must be served with a copy of the rule nisi, unless such copy is waived, Code, § 70-306, and the statute prescribes no time during which the opposite party must be served with a copy of the rule nisi. Wood v. Wood, 132 Ga. 484(1), 64 S.E. 467; Louisville & Nashville R. Co. v. Nelson, 145 Ga. 89, 88 S.E. 544; Peavy v. Peavy, 167 Ga. 219, 145 S.E. 55; Webb v. Nobles, 195 Ga. 287, 24 S.E.2d 27. Where, as in this case, no time for serving a copy of the rule nisi is fixed by the presiding judge, it should be served in ample time for the opposite party to prepare for the hearing. Martin v. Monroe, 107 Ga. 330(2), 33 S.E. 62; Wood v. Wood, supra. But when the time fixed for the hearing arrives, and no service has been effected, it is generally a matter in the sound discretion of the trial judge whether to dismiss the motion--as was done in Smedley v. Williams, 112 Ga. 114, 37 S.E. 111, and Wolff v. Sampson, 123 Ga. 400, 51 S.E. 335--or to continue the final hearing until service is perfected, as in Martin v. Monroe, supra, and Louisville & Nashville R. Co. v. Nelson, supra. In this case it appears that a rule nisi was signed by the trial judge on October 15, 1952, which required the plaintiff to show cause before him on January 19, 1953, why a new trial should not be granted; and it also granted a supersedeas until further order of the court. By the rule nisi the movant was directed to serve the opposite party wity a copy of the motion for new trial and with a copy of the rule nisi, and counsel for the plaintiff on the following day, but before the motion and the rule nisi were filed with the clerk of the trial court, acknowledged due and legal service of the motion and of the rule nisi, and according to his own statement he was at that time furnished with a copy of each. As we view the indorsement which was placed on the...