Opinion
13631.
APRIL 16, 1941.
H. Cliff Hatcher, for plaintiffs.
Bussey Fulcher and Lewis Lewis, for defendants.
1. Section 7 of the act of August 15, 1903, creating the city court of Waynesboro, provided as follows: "Whenever a case is heard at either a regular or special session of said court, and defendant desires to move for a new trial, such motion must be made within two days after the adjournment of the session and passed upon by the judge of the city court within ten days after the motion is filed, and not afterwards, unless for good cause further time may, by order, be granted in the discretion of the judge of the city court; provided, however, when such session shall be adjourned over for more than two days, then said motion shall be filed within two days from the date of adjournment." Section 19 of the same act provided for the holding of monthly terms on the first Wednesdays in each month, and for quarterly terms beginning on the second Mondays in March, June, September, and December; while in section 9 provision was made for the holding of adjourned terms in the discretion of the judge. Ga. L. 1903, p. 174 et seq.
2. Where, during a quarterly term of the city court of Waynesboro, the judge presiding, on October 27, 1939, dismissed the jury for the term, and on the next day, October 28, 1939, directed the clerk of the court to enter upon the minutes a statement that the session of the court had been "recessed" until November 1, 1939, and entry was made accordingly, and where after a motion for new trial was made by a defendant on October 31, 1939, the judge, in overruling a motion made by the plaintiff to dismiss such motion for new trial, on the ground that it had not been filed within two days after adjournment as provided by the act, in effect construed his order of October 28 as not being an order adjourning the court over in the sense in which the expression "adjourned over" is used in the above-quoted section 7: Held, that in the circumstances it could not properly be adjudged on review that the session of the court had been "adjourned over" within the meaning of that section.
3. The first question propounded by the Court of Appeals is answered in the negative. In this view, it is unnecessary to answer the second and third questions.
No. 13631. APRIL 16, 1941.
The Court of Appeals (in Cases 28344, 28514) certified to this court questions as follows: "1. Where, during the quarterly term of the city court of Waynesboro, the judge presiding, on October 27, 1939, dismissed the jury for the term, and on the next day, October 28, 1939, directed the clerk of the court to enter upon the minutes of the court that the session of the court had been 'recessed' until November 1, 1939, and the following entry was made by the clerk of the court on the minutes of the court: 'October 28, 1939, the court recessed today until the first Wednesday in November, 1939,' and where it is provided in the act approved August 15, 1903, creating the city court of Waynesboro in section 7 (Ga. L. 1903, pp. 174, 176), that when a session of that court 'shall be adjourned over for more than two days, then said motion [meaning motion for new trial filed by a defendant] shall be filed within two days from the date of adjournment,' and where the presiding judge in passing upon a motion for new trial, made by a defendant on October 31, 1939, which was more than two days after the session of the court had been 'recessed' as above indicated, overruled a motion by the plaintiff to dismiss the defendant's motion for new trial made on the ground that the motion had been filed more than two days after the court had 'recessed,' in effect construed his order recessing the court as not being an order 'adjourning' the court 'over' in the sense in which the expression 'adjourned over' is used in the above-quoted section of the act, had the session of the court been 'adjourned over' in the sense in which this expression is used in the act approved August 15, 1903 (Ga. L. 1903, pp. 174, 176), wherein it is provided as follows: 'Whenever a case is heard at either a regular or special session of said court and defendant desires to move for a new trial, such motion must be made within two days after the adjournment of the session and passed upon by the judge of the city court within ten days after the motion is filed, and not afterwards, unless for good cause further time may, by order, be granted in the discretion of the judge of the city court; provided, however, when such session shall be adjourned over for more than two days, then said motion shall be filed within two days from the date of adjournment?'
"2. Where, during the quarterly term of the city court of Waynesboro, the judge presiding, on October 27, 1939, dismissed the jury for the term, and on the next day, October 28, 1939, directed the clerk of the court to enter upon the minutes of the court that the session of the court had been 'recessed' until November 1, 1939, and the following entry was made by the clerk of the court on the minutes of the court: 'October 28, 1939, the court recessed today until the first Wednesday in November, 1939,' was the session of the court 'adjourned over' in the sense in which this expression, 'adjourned over,' is used in the act approved August 15, 1903 (Ga. L. 1903, pp. 174, 176) in section 7, appearing on page 176, as above quoted?
"3. In counting 'two days from the date of adjournment' within which a motion for new trial must be made by a defendant in the city court of Waynesboro, after a session of the court has been 'adjourned over' as provided in section 7 of that act (Ga. L. 1903, pp. 174, 176), must Sunday be counted as one of the two days, when it is not the last day, as where the court 'adjourned over' on October 28, 1939, which was Saturday, and a motion for a new trial was made by a defendant in the court on October 31, 1939, which was Tuesday, a Sunday, October 29, 1939, intervening?
"Following is the order of the trial judge dismissing the plaintiff's motion to dismiss the defendant's motion for a new trial referred to in question No. 1: 'The above and foregoing written motion to dismiss the motion for new trial wherein respondent asked that the motion for new trial be dismissed on the ground that the same was filed too late, coming on for a hearing, and after argument, the same is considered, ordered, and adjudged by the court that said motion to dismiss the motion for new trial is hereby overruled. Because the case was tried on Friday, October 27th, 1939, and that on October 28th, 1939, the city court of Waynesboro was recessed over until the first Wednesday in November, 1939. The motion for new trial having been filed on October 31st, 1939, was filed in time. And for further reason that counsel for applicant inquired of the court while the jury was considering the case on Friday, October 27th, 1939, whether or not the court would adjourn, or recess to another date, and was informed that the term of the court would be recessed over to the first Wednesday in November, 1939, as had been our regular practice for a number of years to recess, the quarterly term of the court to the first Wednesday in the following month."
The first question propounded by the Court of Appeals recites that the trial judge directed the clerk to make entry on the minutes that the court had been recessed; shows the entry of the clerk to the effect that the court had been recessed; quotes the provision of the act which provides that when a session of the city court of Waynesboro shall be adjourned over for more than two days, a motion for new trial filed by a defendant shall be filed within two days from the date of such adjournment; and contains a further recital that the judge, in passing on a motion for a new trial made by a defendant more than two days after the date of the order mentioned, denied a motion made by the plaintiff to dismiss the defendant's motion on the ground that it had been filed too late, thus in effect construing his order as merely one recessing the court, and not as one adjourning the court over in the sense of the act. The second question is similar, except that it omits the statement that the judge in effect construed his order as one recessing the court, and not adjourning it over. The third question asks whether if a Sunday intervenes that day must be counted in calculating the two-day period.
Answering the first question: In Hines v. McLellan, 117 Ga. 845 ( 45 S.E. 279), it was said that taking a recess is not the equivalent of an adjournment. This was repeated in Elrod v. Bagley, 150 Ga. 329 ( 103 S.E. 841). Ordinarily, if a court only takes a recess until a later date, it is not closed but is merely inactive, and the judge could, if desired, pass orders as in term, during the interim; whereas if a court should adjourn over to a later date, the interim might be considered generally as a period of vacation, although for the purpose of determining the time within which to present a bill of exceptions, as in the cases just cited, or for the purpose of making a motion for a new trial, and perhaps for still other purposes, the original term should be treated as continuing during such intervening period. The general law requires that a motion for a new trial shall be made "during the term," but not that it should be filed in open court. See Mathis v. Crowley, 146 Ga. 749 ( 92 S.E. 213); Chattanooga, Rome Columbus Railroad Co. v. Owen, 90 Ga. 265 ( 15 S.E. 853); Chattanooga, Rome Columbus Railroad Co. v. Huggins, 89 Ga. 494 ( 15 S.E. 848); King v. Sears, 91 Ga. 577 (8) ( 18 S.E. 830); Duggar v. East Tennessee, Virginia Georgia Railway Co., 85 Ga. 437 ( 11 S.E. 811); Jinks v. State, 115 Ga. 243 ( 41 S.E. 580); Carter v. State, 14 Ga. App. 242 ( 80 S.E. 533); Adams v. Seay, 62 Ga. App. 589 ( 9 S.E.2d 117).
Two other sections besides section 7 of the act creating the city court of Waynesboro should be considered in this connection: Section 19 provides that "the terms of said city court shall be monthly and quarterly; the monthly terms shall be held on the first Wednesdays in each month and the quarterly terms shall be held on the second Mondays in March, June, September and December." Section 9 declares that "the judge of said city court may hold adjourned terms of said court, when, in his discretion, the same is advisable, and the jurors summoned to the quarterly term immediately preceding such adjourned term shall serve at such adjourned term." When the question here is considered in connection with all of the foregoing sections, it appears that the judge merely recessed the court from October 28, during a quarterly term, until the following Wednesday, November 1, which was the day for the beginning of the regular November monthly term. Apparently the announcement of a recess, with direction to the clerk as to entry of such, did not contemplate the holding of an adjourned term at a later date, within the meaning of section 9 providing for "adjourned terms." Under section 7, a motion for a new trial by the defendant must be made within two days after adjournment of the session at which the case was tried; provided, however, that when such session shall be "adjourned over" for more than two days, the motion should be filed within two days from the date of the adjournment over, and not within two days after the court is finally adjourned for the term. The section further declares that, except as otherwise provided, the procedure relating to motions for new trials shall be the same as in the superior court. These provisions of section 7 should be read in connection with section 9; and thus considered, the words "adjourned over" would apparently contemplate adjournment over for the purpose of holding an adjourned term, and not a recess until the beginning of the next monthly term. See "adjournment" and "recess," 1 C. J. 1235; 53 C. J. 546; 2 C. J. S. 47, and notes.
Under the recitals contained in the question, it is apparent that the judge intended a distinction between a recess and an adjournment over, when he ordered that the court be recessed, and that he used the term "recess" advisedly. The recital in his order refusing to dismiss the motion for new trial would indicate that while the jury were considering the case he had clearly in mind the question whether he would adjourn or recess the court; for at that time, in response to an inquiry made by counsel as to the very matter, he informed counsel "that the term of the court would be recessed over to the first Wednesday in November, 1939, as had been our practice for a number of years to recess the quarterly term of the court to the first Wednesday in the following month." This indicates that he was not intending an "adjourned term" as provided for in section 9. While the line of distinction between a recess and the interval following an adjournment to a later time may be rather dim, or even nonexistent as to some purposes, yet there is some difference; and when the judge who passed the order subsequently construed it to mean a certain thing, that construction which he gave to his own order, if it is doubtful or ambiguous, will generally be adopted by the court of review. Compare Barnes v. Macon Northern R. Co., 105 Ga. 495 ( 30 S.E. 883); Brown v. Richards, 114 Ga. 318 ( 40 S.E. 224); Pinnebad v. Pinnebad, 129 Ga. 267 (2) ( 58 S.E. 879); Liverpool London Globe Insurance Co. v. Peoples Bank of Mansfield, 143 Ga. 355 ( 85 S.E. 114). We are of the opinion that under the recitals contained in the first question it could not properly be said on review that the session of the court had been "adjourned over" in the sense in which that expression is used in the act. The question is therefore answered in the negative. On viewing all of the questions together, it is apparent that since the first question is answered in the negative, it is unnecessary to answer the second and third questions.
All the Justices concur.