Vanover v. Error
| Decision Date | 31 January 1871 |
| Citation | 41 Ga. 577 |
| Parties | JOHN B. VANOVER et al., plaintiffs in error. v. W. H. TURNER defendant in error. |
| Court | Georgia Supreme Court |
Motions for New Trials. Amendments. Before Judge Harrell. Terrell Superior Court. November Term, 1870.
This cause was ejectment. At May Term, 1869, there was a verdict for the plaintiff. A motion for new trial was made on various grounds; a brief of the evidence was made up and plaintiff's attorney agreed that it was correct, but claimed that a certain deed mentioned therein should be set out in extenso; a copy of this deed was attached to said brief, and the motion in this shape was submitted to the Judge. He passed a rule nisi calling upon the plaintiffs' counsel to show cause, at the next term, why a new trial should not be granted. From the record it appears that this rule nisi was issued after the brief was amended by the addition of the copy deed to said brief of thetestimony. Whether this is true is made doubtful by the bill of exceptions.
It states as follows: "At the next term, when this motion came on to be heard, the Judge, exsuo mero motu, dismissed the motion upon the ground that the brief of evidence in said *case had not been approved by the Court, and because
said copy deed was not embodied in said brief, when in fact said copy deed was appended to said brief. Movants' counsel offered then to embody the copy in said brief, and then submit it to the Court for approval. This the Court would not allow, and without examining the brief of evidence, refused to hear the motion for a new trial." His refusal to allow the brief amended as proposed, and his dismissal of the motion, are assigned as error.
H. Morgan, A. Hood, C. B. Wooten, for plaintiff in error, cited 1st Kelly, 252; 8th Georgia, 112; 7th, 436; Code, section 3661.
F. M. Harper, Vason & Davis, by R. H. Clark, for defendant.
1. Whether the agreement of counsel to the brief of evidence on a motion for a new trial supercedes the necessity of its approval and revision by the Court, does not seem ever to have been distinctly decided by this Court. The cases are numerous in which it is implied that the agreement of counsel is sufficient: 1st Georgia, 254; 3d, 220; 7th, 436; 8th, 111; 10th, 93; 13th, 403. But in none of these cases was the point actually involved in the decision.
In this case the Judge had granted a rule nisi for a new trial. The law requires the brief of the testimony to be filed, approved and revised, at...
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Cutis v. Geiger
...motion for a new trial, at any time while the motion is still pending before him and until the bill of exceptions is certified. Vanover v. Turner, 41 Ga. 577 (2); Ford v. Holmes, 61 Ga. 419 (5); Tate v. Griffith, 83 Ga. 153 (2), 9 S. E. 719; Keys v. Bell, 111 Ga. 795, 36 S. E. 987; Tifton, ......
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...final disposition as a matter of right and not merely in the discretion of the court. Hamilton v. Conyers, 25 Ga. 158, 163; Vanover v. Turner, 41 Ga. 577(2); Girardey Bessman, 62 Ga. 654(3). (b) This right is not subject to any arbitrary limitation imposed either by the practice prevailing ......
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Allen v. Bone
...final disposition as a matter of right and not merely in the discretion of the court. Hamilton v. Conyers, 25 Ga. 158, 163; Vanover v. Turner, 41 Ga. 577(2); Girardey v. Bessman, 62 Ga. 654 (3). (b) This right is not subject to any arbitrary limitation imposed either by the practice prevail......
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