Harvey v. State , 16 Ga. App. 252 ( 1915 )

Wade, J.

The court did not err in dismissing a motion for a new trial, which by an order of the judge was set for hearing at a certain place and time in vacation, where on the day thus fixed for the hearing the. solicitor-general appeared and moved to dismiss the motion (this being his first opportunity), for the reason that no copy of the rule nisi issued thereon had ever been served upon him, and it appeared that there was no service or acknowledgment of service of either “the original motion and the rule nisi, or a copy thereof, and the said solicitor-general stated in his place upon the hearing of said motion that he had not waived, and that he then and there declined to waive, service upon himself of the rule nisi in question,” and the “movant then introduced in evidence the further statement of the said solicitor-general, then and there made by him in his place, upon the hearing of said motion for a new trial, that counsel for movant simply told him (the solicitor-general) that he (movant’s counsel) had filed a motion for a new trial in the case of the State v. Harvey, and this was all the notice he (the solicitor-general) ever received from movant or movant’s counsel about the motion for a new trial in question.”

(а) No reason appears and no excuse was offered for the failure to serve counsel for the State, or to obtain from him an acknowledgment of service, which might in the discretion of the court have authorized a continuance of the hearing until service could be perfected, nor does it appear that any motion for such a continuance was made.

(б) This court can not hold that a mere statement by movant’s counsel to counsel for defendant in error that he had filed a motion for a new trial would dispense with the service of a copy of the motion itself and of the rule nisi, as required by the original order of the trial judge, or be a compliance with the requirements of section 6080 of the Civil Code of 1910. See Thornton v. State, 16 Ga. App. 210 (84 S. E. 973), and citations. Judgment affirmed.

Motion for new trial; from city court of Thomasville — Judge W. H. Hammond. February 8, 1915.

Fondren Mitchell, for plaintiff in error. H. J. MacIntyre, solicitor, contra.