Opinion
35737.
DECIDED JULY 15, 1955.
Motion for continuance. Before Judge Etheridge. Fulton Civil Court. April 18, 1955.
James R. Venable, Margaret Hopkins, for plaintiff in error.
Kyle Yancey, contra.
Under the circumstances of this case the court did not err in denying the motion for a continuance of the hearing on the motion for a new trial for the purpose of procuring a brief of evidence and amending the motion, and since the motion was on the general grounds only and was not accompanied by a brief of the evidence, the court did not err in dismissing the motion.
DECIDED JULY 15, 1955.
On February 17, 1955, the case of C. N. Hardy v. Dean McKoy was tried before a jury in the Civil Court of Fulton County. On the same date the jury returned a verdict for the plaintiff and a judgment was entered accordingly. The bill of exceptions recites: "Be it further remembered, that on February 22, 1955, the defendant filed his motion for new trial on the general grounds, and said motion was set for hearing by said judge at 2:00 o'clock p. m., on April 18th, 1955. Be it further remembered, that when said motion for new trial came on for hearing on the date and at the time specified, counsel for defendant stated to the court that due to the fact that she and her associate, . . . had been in court almost every day since the date of the trial, and when not in court had been under great pressure preparing cases for trial and the like, and due to the further fact that the defendant's real-estate business kept him from his office a great deal, it had been impossible to confer with the defendant until the preceding day, a Sunday, when counsel finally talked to him at his home; that until that day it was not known whether the motion for new trial would be insisted upon, or whether the judgment would be paid off, and at that time the defendant wished the motion insisted upon; that both counsel and the defendant had been diligent in making telephone calls, and writing letters, in an effort to have such conference, but due to the respective absences and pressure of work, it had been impossible; that the next morning, the record had been ordered out, and Mr. Brandenberg, the reporter, stated that it would be impossible for him to have the record ready before about May 15, 1955; that defendant wished to amend his motion for new trial on the grounds of errors in the charge of the court, which could not be done without the record; and because of these facts, counsel respectfully moved for a continuance that the ends of justice might be served, such continuance being within the discretion of the court. Whereupon, upon objection of counsel for the plaintiff, the court orally overruled said motion for continuance, stating that counsel had had sixty days in which to prepare said amendment, and secure said record, this unusual length of time having been originally granted because counsel had informed the court of the heavy court calendars they were facing, and the court felt that sufficient time had elapsed for proper preparation of the motion. The court stated that in view of the fact that the record had not been ordered until the day the motion was scheduled to be heard, he felt the case had not been pursued with proper diligence. Be it further remembered, that counsel for defendant then requested that the court overrule the motion for new trial, as the basis for an appeal; and this the court refused to do, since the motion as it stood was on the general grounds, and counsel was unable to present a brief of evidence; and the court thereupon entered the following order: `Dismissed — want of prosecution, 4/18/55.' To the ruling of the court refusing to grant a continuance defendant then and there excepted, and now excepts, upon the ground that such refusal was an abuse of discretion on the part of the court, and defendant assigns error thereon on the ground that such ruling is contrary to the principles of justice and equity, and contrary to law, in that the court's discretion was exercised in such a way as to defeat, rather than to further, the cause of justice. To the ruling of the court dismissing said cause for want of prosecution, the defendant then and there excepted, and now excepts, upon the ground that such ruling is contrary to law, and contrary to the principles of justice and equity, in that said cause was being prosecuted to the best ability of counsel for defendant as hereinbefore set out; and in refusing to overrule said motion and dismissing it as aforesaid, defendant was deprived of his right to appeal from the erroneous verdict of the jury and judgment of the court, he having grounds of appeal."
The court did not err in overruling the motion for a continuance or in dismissing the motion for a new trial. "Section 5485 of the Civil Code [Code 1933, § 70-302] is addressed to the sound discretion of the trial judge and it will be presumed in the absence of a clear showing to the contrary, that this discretion was not abused." James v. John Flannery Co., 6 Ga. App. 811 (1b) ( 66 S.E. 153). The verdict and judgment were dated February 17, 1955. The motion for new trial on the general grounds was dated February 22, 1955. The hearing on the motion was set for and held on April 18, 1955. The brief of evidence was not ordered from the court reporter until April 18th, the date of the hearing. The court did not abuse this discretion in holding that legal cause was not shown for the granting of a continuance for the purpose of amending the motion for new trial or procuring a brief of the evidence. "As the statute [Code § 70-301] is imperative, not mentioning any excuse whatever, it contemplates that the movant can and must comply with its terms, irrespective of whether the official stenographer of the court has written out his report of the evidence or not. And hence the stenographer's omission or failure so to do is no legal reason for delaying the filing beyond the time granted by the court's special order; certainly not, unless that reason is, under all the circumstances satisfactory to the presiding judge." Boatwright v. State, 91 Ga. 13 ( 16 S.E. 101).
The refusal of the court to grant a continuance left the motion pending on the general grounds only and since no brief of the evidence was attached to the motion, the court did not err in dismissing the motion. Gartrell v. Theobold, 65 Ga. App. 161 ( 15 S.E.2d 470); Dollar v. Fred W. Amend Co., 58 Ga. App. 797, 798 ( 199 S.E. 845), and citations.
The defendant's motion for damages for an appeal for delay only as provided for in Code § 6-1801 is denied.
The court did not err in refusing to grant a continuance or in dismissing the motion for a new trial.
Judgments affirmed. Quillian and Nichols, JJ., concur.