Dobbs v. Sims , 74 Ga. App. 1 ( 1946 )

(a) A motion for a new trial, not including the brief of evidence, is a nullity.

(b), (c) Under the provisions of the act creating the Civil Court of Fulton County, an oral motion for a new trial is a nullity in a case where the principal sum sued for is more than $300. The judgment of affirmance in this case is reached after conceding but not deciding that the motion to dismiss the writ of error on the part of the plaintiff is without merit.

DECIDED JUNE 13, 1946. This case arose when Walter A. Sims, hereinafter called the plaintiff, obtained a dispossessory warrant against Joseph N. Dobbs, hereinafter called the defendant, for the possession of a housing accommodation under the Office of Price Administration Act. The grounds relied on for recovery of the possession of the premises were that the defendant was "creating and permitting nuisance on the premises." The writ was returned to the Civil Court of Fulton County. The defendant filed his counter-affidavit. On January 30, 1946, the case proceeded to trial before a judge of that court and a jury. After the introduction of evidence, the judge directed a verdict for the plaintiff in the sum of $750, including double rent. The defendant immediately "made an oral motion for a new trial." On February 2, 1946, the defendant filed his written motion for a new trial. The motions were made returnable for hearing on February 28, 1946. At the hearing the plaintiff made a general motion to dismiss the written motion for a new trial. The court granted this motion and dismissed the motion for a new trial. The hearing was continued until March 1, 1946, on which date the plaintiff made a general motion to dismiss the oral motion. The court dismissed this motion. On March 2, 1946, the defendant filed exceptions pendente lite to the dismissal of his written motion. So far as the record shows, including the bill of exceptions, the motions of the plaintiff to dismiss and the judgment of the court granting the same, as well as all exceptions of the plaintiff, are general.

We have set out the rulings of the court in their chronological order and we will discuss them in such order. (a) Did the court err in dismissing the written motion on February 28, 1946? It nowhere appears in the record that a brief of the evidence was submitted and approved, as a part of the motion for a new trial, by the trial court. Under the many decisions of this court and the Supreme Court, a motion for a new trial without a brief of the evidence is a mere nullity. InKalil v. Spivey, 70 Ga. App. 84 (2) (27 S.E.2d 475), this court said: "A motion for new trial without an approved brief of the evidence is a mere nullity." In Graham v. Hall,70 Ga. App. 597 (28 S.E.2d 884), it is stated: "One of the indispensable requisites of a valid motion for a new trial is that it be accompanied by a brief of the evidence, and if there is no brief of the evidence, no motion for a new trial exists." There are many other decisions to the same effect, which we deem it unnecessary to cite. The court did not err in dismissing such a motion.

(b It is conceded by the defendant that under the provisions of the act creating the Civil Court of Fulton County, an oral motion for a new trial, in a case where the principal amount sued for is more than $300, is a nullity. Automobile Ins. Co. ofHartford v. Watson, 39 Ga. App. 244 (146 S.E. 922). Where the principal amount sued for is over $300, a motion for a new trial must be made in writing under the same rules as those governing cases in the superior courts. Since the principal sum sued for in the instant case is over $300, the oral motion for a new trial was a nullity, and for the reasons which we have given in division (a) of this opinion, the written motion was likewise a nullity. There is no merit in this ground.

(c) The plaintiff made a motion to dismiss on the ground that the assignments of error in the bill of exceptions are general and insufficient in law to authorize this court to determine any question involved. We have written this opinion conceding, but not deciding, that the bill of exceptions is sufficient as a matter of law to authorize this court to decide the questions hereinabove set out.

The court did not err in overruling the motions for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.