Union Banking Co. v. Weaver , 148 Ga. 684 ( 1919 )

Hill, J.

The Union Banking Company had levied a fi. fa. in its favor, against J. L. Weaver and others, upon certain lands, and a claim was filed by Mrs. Lula Weaver. On the trial a verdict was rendered in favor of the claimant. The Union Banking Company filed a motion for a new trial, and an order was taken setting the motion for hearing before the presiding judge at 10 o’clock on November 17, 1917, in vacation, and stipulating that the movant have until the hearing in which to prepare and present for approval a brief of the evidence in the case, upon condition that the brief of evidence and stenographer’s report be submitted to opposing counsel five days prior thereto, which was not done. Movant not appearing at the time or on the day set for the hearing, and having failed to present for approval a brief of the evidence, and not having otherwise urged and prosecuted the motion for a new trial, or requested a continuance thereof, the presiding judge, at chambers on the day appointed, passed an order dismissing the motion. On December 6, 1917, in vacation, the movant presented to the presiding judge an application for reinstatement of tlie motion; and upon the hearing of the application on January 26, 1918, in vacation, a demurrer and answer to it were filed. The demurrer was overruled, and, without any evidence being introduced by the movant, the judge granted and signed an order setting aside the judgment of dismissal, and reinstating the motion for a new trial. To this judgment the claimant excepted pendente lite. On March 2, 1918, the reinstated motion for a new trial was heard, and on April 16, 1918, the judge overruled the motion. To this judgment the movant excepted. The defendant in error filed a eross:bill of exceptions and assigned error on the ruling excepted to pendente lite. Held:

Nos. 992, 1019. January 15, 1919.

Claim. Before Judge Highsmith. Appling superior court. April 16, 1918.

J. W. Quincey and Padgett & Watson, for plaintiff. W. W. Bennett, contra.

1. The judgment reinstating the motion for a new trial is error. The court was without jurisdiction on a later day than the one assigned for the hearing, in vacation, to reinstate the motion. Hinson v. Tanner, 147 Ga. 804 (95 S. E. 687); Sheffield v. Sheffield, 148 Ga. 466 (97 S. E. 76).

2. The ruling here made upon the cross-bill of exceptions disposes of the entire ease, and makes a ruling upon the main bill unnecessary. Hinson v. Tanner, supra.

Judgment reversed on cross-hill exceptions. Main hill of exceptions dismissed.

All the Justices concur.