Anderson v. McLean & Co. , 94 Ga. 798 ( 1895 )

Simmons, Chief Justice.

The act of 1889 relating to the subject of new trials applies only to those courts which hold longer than thirty days. The law governing new trials for courts which hold for less than thirty days is the same as it was before'the passage of that act. Under the old law, an application for a new tidal must be made within the term at which the ease is tried, and a brief of the evidence must also be filed within the term, under the revision and approval of the court. If there is not sufficient time during the term to make out and file a brief of evidence with the approval of the court, the practice is for the court to allow additional time, in vacation, to do so. This court has held in numerous cases that when this plan is adopted, time is of the essence of the contract, and the applicant must comply strictly with the terms of the order granting him the additional time. It has also held that merely filing a brief, under such an order, is not sufficient; that it must be. approved by .the judge within the time prescribed in the order; that such a paper is not a brief without the approval of the judge. Whenever, therefore, additional time has been granted and the paper has been filed without the approval of the judge, and the motion for a new trial has been dismissed in the court below for want of such approval, this court has refused to control the action of the judge below. It has likewise-in nearly all the cases approved his action, when the brief has been filed within the time allowed and he has approved it afterwards and refused to dismiss the case for want of approval within the time prescribed in the order. There is but one exception to these rulings that we now remember, and that is in the case of Arnold v. Hall, 70 Ga. 445, where the time for the hearing had expired and no order was taken to continue it on the day it was to have been heard, and four days after the expiration of the time for the hearing, the judge approved the brief and granted a new trial. This action of the court was reversed on the ground that he had no power to do anything in the case after the time set for the hearing of the motion had expired and no order had been taken to continue it or to set it for another day, the court’s action really being coram nonjudice. So it will be seen, that this is a matter which this court leaves largely to the discretion of the ■court below, which we cannot control unless it is manifestly abused. We therefore lay down this rule, that in courts not affected by the act of 1889, sufra, where a movant for a new trial obtains an order, which without more merely allows additional time within which to file his brief of evidence, he must not only file it within that time, but it must be approved by the court within that time. If this is done, no motion to dismiss the motion for a new trial for want of filing and approval should prevail. If, upon-the other hand, the brief has been ■filed within the time prescribed by the order but not approved by the judge, the movant takes the risk of the judge’s refusal to approve. If he approves it, that is sufficient, unless his discretion is manifestly abused, and this court will not interfere with his action in the matter; if he fails to approve it, this court will not control his discretion. In laying down this rule, we do so, of course, with the belief that trial judges in approving or refusing to approve briefs of evidence will act as upright judges, seeking to do justice between the parties and to injure no one arbitrarily.

These rulings apply likewise to motions for new trials made in courts which hold more than thirty days, when additional time beyond the thirty days is granted the movant within which to file a brief of evidence where none has been filed at all, or when additional time is granted to perfect a brief already filed but which needs something to make it a complete and legal one, other than the judge’s approval. In other words, if under the order giving further time there is anything for the movant to do within the time limited by the order and he fails to do it, he cannot as a matter of right insist on further indulgence, but will be subject to the exercise of the judge’s discretion, as above set forth. See, in this connection, Brunswick Light Company v. Gale, 91 Ga. 813. Judgment affirmed.