Hill v. First National Bank , 160 Ga. 883 ( 1925 )

Atkinson, J.

1. It is provided in section 1 of the act approved December 14, 1895 (Acts 1895, p. 46), that '“The several judges of the superior . . courts of this State shall have power and authority to hear and determine, in vacation as well as in term time, without any order of court passed in term time, all motions for new trial, certioraries, and all such other matters as they can now hear and determine in term time, and which are not referred to a jury.” The substance of this part of the statute is now embraced in the Civil Code (1910), § 4852. Section 2 of said act provides: “That the hearing of all cases provided for in the first section of this act shall be fixed by the judge upon the application of either party or his counsel, of which time and place the party making said application, or his attorney, shall give the opposite party or his attorney at least ten days’ notice in writing.” This part of the statute is now embodied in the Civil Code (1910), § 4853. These two sections of the code, founded on the same act of the legislature, are component parts of one law. The first section confers and defines the power of the courts with respect to the specified matters, and the second section provides procedure by which the courts take jurisdiction for exercise of such powers. The second section provides for an application to the court, but does not specify a written application. An oral ap-' plication will suffice. If a party during vacation presents a written order to be signed by the judge setting a motion for new trial for a hearing in vacation, and the order is signed by the judge, such action by the party is the equivalent of an application for the order granted by the judge, and to that extent is a compliance with section two of the act. Ordinarily a written notice by the applicant or his attorney to the opposite party or his attorney should be given of the time and place of hearing (Lott v. Wood, 135 Ga. 821, 70 S. E. 661; Carter Co. v. O’Quinn, 143 Ga. 390, 85 S. E. 90), but such notice may be waived. See Lott v. Wood, supra; Avery v. State, 4 Ga. App. 460 (61 S. E. 839); Pugh v. State, 7 Ga. App. 814 (68 S. E. 309). Where the party entitled to such notice appears by his attorney at the appointed time and place and participates in the disposition of the motion for new trial, without objecting to the jurisdiction of the court, he will be held to have waived the notice. Accordingly, where during vacation the attorney for the movant in a motion for a new trial prepares a written order for the judge’s signature, setting the motion for a new trial for a hearing at a certain time and place in vacation, and at the appointed time and place the attorneys for both parties’ appear, and the respondent moves to dismiss the motion for a new trial, and the movant in the motion for new trial resists the motion to dismiss on grounds other than that the court was without jurisdiction, and the judge sustains the motion to dismiss, the judgment of dismissal will not be void as having been rendered without jurisdiction.

The case differs on its-facts from the following cases: That of Dixon v. Hawkins, 100 Ga. 5 (27 S. E. 188), related to a term order which provided for a hearing “on a day to be fixed by the judge, of -which ten days’ notice shall be given to counsel for all parties,” and a party to be affected by the judgment did not appear or consent to the hearing. In Atlanta, Knoxville & Northern Railway Co. v. Strickland, 114 Ga. 998 (41 S. E. 501), the order of the judge setting the motion did not purport to be upon application of either party, and both parties did not appear at the appointed time and place and participate at a hearing of the motion for new trial. In Wood v. Wiley Manufacturing Co., 117 Ga. 517 (43 S. E. 983), there was no presentation by one of the parties of a written order of the court providing for a hearing of the motion for new trial in vacation. In Sapp v. Williamson, 128 Ga. 743 (58 S. E. 447), the matters involved were such as under the law would be referred to a jury. The following decisions were rendered prior to the act of 1895. Brinkley v. Buchanan, 55 Ga. 342; Western and Atlantic Railroad Co. v. Johnson, 59 Ga. 626; Walker v. Banks, 65 Ga. 20. The foregoing is a-sufficient answer to the question propounded by the) Court of Appeals.

All the Justices concur.