Throgmorton v. Trammell , 89 Ga. App. 466 ( 1953 )

Per Curiam.

Code § 70-306 provides as follows: “In all applications for a new trial the opposite party shall be served with a copy of the rule nisi, unless such copy is waived.” As appears from the statement of facts, an acknowledgment of service, reciting merely "Due and legal service of the within motion and order acknowledged; copy received”, signed by counsel for the plaintiff and dated October 16, 1952, was had of the motion for new trial and rule nisi, which, however, were not filed until October 18, 1952. There was no further attempt to serve the plaintiff or obtain an acknowledgment of service, and no further waiver of service. It must therefore be determined, first, whether service was in fact perfected, and secondly, if not, whether the lack of service should have resulted in a dismissal of the motion for new trial upon motion of the plaintiff on that ground.

“It is essential to the validity of a motion for new trial that it should be filed with the clerk of the trial court within the time prescribed by law; and a motion which has not been so filed should be dismissed, notwithstanding the judge before whom the case is tried may have granted a rule nisi within the time provided in the consent order. Until the motion is filed it is a mere private paper. Hilt v. Young, 116 Ga. 708, 712 (43 S. E. 76).” United States Fidelity &c. Co. v. First National Bank of Cornelia, 149 Ga. 132 (1a) (99 S. E. 529). And as stated in Shirley v. Morgan, 170 Ga. 324, 327 (152 S. E. 831): “It is true that a document called a motion for a new trial is not legally a motion for a new trial until it is filed in the office of the clerk of the court. . . Therefore, it would necessarily follow that a mere acknowledgment of service, or a service by the sheriff of an unified document purporting to be a motion for a new trial, nothing else appearing, would be a nullity.” It follows, therefore, that at the time the copy of the unified motion for new trial and order thereon were left with plaintiff’s counsel and he acknowledged service thereof, the document was a mere private paper, and, so far as service was concerned, a nullity.

As stated in Town of Fairburn v. Brantley, 161 Ga. 199 (2) (130 S. E. 67): “Failure to serve a motion for new trial will afford ground upon which the motion must be dismissed, but the failure may be waived.” Accordingly, no service having been had upon the respondent in the motion for new trial subsequently to the filing of such motion with the rule nisi thereon, it must next be determined whether a waiver exists. The wording of the acknowledgment of service here concludes nothing which would not have been concluded by a sheriff’s return of service, since it merely recites that there has been due and legal service, and copy lias been received. “Service” refers to service of the unified motion and rule—in other words, service of a mere private paper, which, at the time it was served, was of no efficacy whatever. It did not, as in Shirley v. Morgan, supra, waive “time, copy, and all other and further service,” and did not constitute a waiver of proper service after the filing, of the motion and order. At most, it shows only that the respondent had notice of the movant's intention to apply for a hearing on a given date, but not of his application for such hearing. Mere notice, where there is no affirmative act done pursuant thereto by the opposite party, does not constitute a waiver. Most of the cases which are cited by counsel for the defendant in error, and have been called to the attention of court, deal with the time of service rather than the fact of service. In L. & N. R. v. Nelson, 145 Ga. 89 (88 S. E. 544), it was held only that no time of service is specified by statute, and the time of service is therefore within the control of the trial judge in the exercise of his sound discretion. In Jemison v. Polk, 130 Ga. 54 (60 S. E. 174), it was held that although service was not made within the length of time specified in the rule nisi, the judge in his discretion might extend the time of service. Webb v. Nobles, 195 Ga. 287 (1) (24 S. E. 2d 27), Gould v. Johnston, 123 Ga. 765 (51 S. E. 608), and Connor v. State, 7 Ga. App. 83 (66 S. E. 482) all hold to the effect that, even though the rule has not been served at the time the motion comes up for hearing, the court in its discretion may continue the case to give time in which service may be perfected. Martin v. Monroe, 107 Ga. 330 (33 S. E. 62) holds that where service is perfected in ample time to permit the respondent to prepare for hearing, it is no ground for dismissal that such service was not made within any stated number of days. In Stone v. Taylor, 63 Ga. 309, and Dorsey v. Central of Ga. Ry. Co., 113 Ga. 564 (38 S. E. 958), it was established that a motion for new trial would not be dismissed simply because an order had been taken in term time to hear the motion in vacation. In none of these cases was there a failure to file the motion for new trial and rule nisi prior to service upon the respondent, except in Shirley v. Morgan, supra, where there was a waiver of “time . . . and all other and further service.”

The question of whether the trial judge upon receipt of the remittitur and before the judgment of this court is made the judgment of the trial court, may then by proper order extend the time in which service of the rule nisi on the motion for new trial may be perfected for a subsequent hearing of the motion, is not before this court.

There being here no valid service, and no waiver of service, nor any continuance for the purpose of perfecting service, the trial court erred in denying the motion to dismiss the motion for new trial.

Judgment reversed.

Felton, Townsend, Carlisle, and Quillian, JJ., concur. Gardner, P. J., dissents. Sutton, C. J., concurs in the dissent.