Wharton v. Sims

• Citation: 15 S.E. 771,88 Ga. 617
• Parties: Wharton et al. v. Sims et al.
• Decision Date: 01 February 1892
• Court: Georgia Supreme Court

15 S.E. 771

88 Ga. 617

Wharton et al.

v.Sims et al.

Supreme Court of Georgia.

Feb. 1, 1892.

Courts—Adjournment—New Trial.

1. When the superior court has been duly convened and adjourned over to a certain day, the judge may, by an order passed before that day arrives, adjourn it over to a subsequent day, so as to carry to the latter a motion for a new trial previously set down to be heard on the former.

2. Though the order specify a particular business for which the court will convene, the court, being thus in legal session, may transact any other business which may come before it, where there is no surprise to parties or their counsel.

3. Where, by order granted in term, a motion, for a new trial is set down for hearing at a subsequent day in term, and leave granted until that day to make out and file a brief of the evidence, and this leave is regularly continued by successive orders all granted in term, the last of which extends the time till the succeeding term, and this last order is complied with, the brief then being duly approved, the want of an earlier approval is no cause f»r dismissing the motion for a new trial. It does not appear that the present case is one to which the act of November 12, 1889, applies.

(Syllabus by the Court.)

Error from superior court, Floyd county; J. W. Maddox, Judge.

Trover by J. H. Wharton and others against W.B. Sims and James M. Walker, partners under the firm name of W. B. Sims & Co., for the value of an engine. Judgment for plaintiffs. From an order overruling plaintiffs' motion to dismiss defendants' motion for a new trial, plaintiffs bring error. Affirmed.

Wright & Meyerhardt, for plaintiffs in error.

Junius F. Hillyer, for defendants in error.

Lumpkin, J. 1. Until the final adjournment of a term of the superior court, it is, in legal contemplation, in session for certain purposes all the while. It may, and, in the nature of things, must, take recesses, during which the active business of the court is suspended. When the court has been adjourned to a certain day, the judge could not, of course, before that day arrives, arbitrarily convene the court, and enter upon the trial of cases, or the transaction of other business, to the prejudice of any party. All persons interested in the business of the court would have the right to absent themselves until the day fixed for the court to resume its session. Nevertheless, we think there is no doubt that the judge, in his discretion, would have the power to pass an order...