Opinion
37644.
DECIDED JUNE 4, 1959.
Motion for new trial; amendments, brief of evidence, continuance, service, etc. Columbia Superior Court. Before Judge Anderson. January 8, 1959.
Eugene M. Kerr, for plaintiff in error.
Randall Evans, Jr., contra.
1. The motion to dismiss the writ of error is without merit for the reasons stated in the body of the opinion.
2. A trial judge has authority to grant a continuance ex parte, although the exercise of such authority is a matter of judicial discretion.
3. Failure to serve opposing counsel with a copy of the brief of evidence or amendments to the motion for a new trial within the time stated in the trial judge's order does not place the movant in default so as to preclude a further extension of time for filing said brief, where movant has been allowed "until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence."
4. At the time of the final hearing, the movant had complied with all provisions of the court's order relative to service except that portion requiring service of amendments to the motion for a new trial, which portion was nugatory.
5. The fact that the original motion for a new trial and rules nisi were signed by the trial judge in Richmond County and not in Columbia County does not affect their validity.
6. The judgments of the court revoking its order of continuance and dismissing the motion for a new trial are reversed with the directions contained in the opinion.
DECIDED JUNE 4, 1959.
Willie T. Gay filed his action in the Superior Court of Columbia County against Reserve Life Insurance Company, now the plaintiff in error, seeking to recover under a certain insurance contract the medical expenses for his wife. The case was tried before a jury on September 22, 1958. At the close of the plaintiff's evidence the defendant's motion for a nonsuit was denied. The jury returned a verdict for the plaintiff and judgment was entered in accordance therewith.
On October 17, 1958, the defendant filed its motion for a new trial on the general grounds. Attached to said motion were two orders, both dated October 16, 1958, the first being a rule nisi setting the date of hearing on the motion for a new trial for November 13, 1958, and the other being an order continuing the said hearing to November 20, 1958, and containing, among other things, the following provisions: "It is further ordered that the movant have until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence in said case, and the presiding judge may enter his approval thereon at any time, either in term or vacation, and if the hearing of the motion shall be in vacation, and the brief of evidence has not been filed in the clerk's office before the date of the hearing, said brief of evidence may be filed in the clerk's office at any time within ten (10) days after the motion is heard and determined. Ordered further that a transcript of the evidence and the proposed brief of evidence and any amendments to the motion for new trial be served upon counsel for respondent by counsel for movant at least 15 days before said date of hearing." Copies of said motion and orders were duly served on the plaintiff. On November 4, 1958, the court amended its first order to fix the date of hearing as November 20, 1958.
On November 18, 1958, without notice to the plaintiff or his counsel, the defendant's counsel sought and obtained an order continuing the hearing on the motion for new trial from November 20 to December 16, 1958. This order of continuance contained the same provisions concerning amendments to the motion and preparation and presentation of the brief of evidence, and ordered service of same upon opposing counsel "at least 15 days before said date of hearing." On December 10, 1958, again without notice to the plaintiff or his counsel, the defendant's counsel sought and obtained another order continuing the hearing on the motion from December 16, 1958, to January 8, 1959, with similar provisions.
On December 16, 1958, counsel for the plaintiff moved to revoke the second order of continuance and to dismiss the motion for new trial. The court issued a rule nisi on this date setting a hearing on said motions for January 8, 1959.
On January 6, 1959, after having given more than 10 days' notice to counsel for the plaintiff, the defendant's counsel presented a proposed brief of evidence, charge of court and amendment to the motion for new trial to the court, who orally refused to approve or allow the same. Counsel for the plaintiff received a transcript of the evidence, charge of the court, and proposed brief of evidence on December 24, 1958, and received a copy of the proposed amendment to the motion for new trial on January 5, 1959. On January 8, 1959, counsel for the plaintiff again presented said documents to the court for approval and allowance, and they were again denied.
On the same date the court issued an "order and judgment on defendant's motion for a new trial," as follows: "In the above-stated case, plaintiff's motion to revoke the court's order of continuance, same being in writing, with rule nisi which had been regularly filed and served, came on for hearing, it being contended that the court's order of continuance dated December 10, 1958, purporting to continue the hearing on motion for new trial from December 16, 1958, until January 8, 1959, should be revoked, and both parties being represented by counsel, and it being shown: (a). The order of continuance was ex parte and without prior notice to plaintiff or his counsel. (b). The rules of Superior Court of the Augusta Judicial Circuit require that matters not heard pursuant to rule nisi shall be assigned in writing with the secretary to the judges and five days' notice given to opposing counsel. (c). The motion for new trial was originally scheduled to be heard on November 20, 1958, but defendant had secured an earlier ex parte order of continuance two days prior to said date, continuing same until December 16, 1958, without prior notice to plaintiff or his counsel. (d). The court stenographer furnished the transcript of the record to defendant's counsel on November 21, 1958, and the orders in the original motion for new trial and in all orders of continuance, provided that defendant should serve on plaintiff's counsel a copy of the transcript, a copy of the brief of evidence, and a copy of the amended motion for new trial at least 15 days prior to the hearing; and defendant's counsel had the transcript in his possession for 9 days prior to December 1, 1958, and thereafter 15 full days elapsed before the date on which the hearing was set, but defendant did not serve a copy of any of the foregoing upon the plaintiff or his counsel at any time prior to December 16, 1958. (e). The defendant, at the time he made ex parte application for continuance of the motion for new trial on December 10, 1958, was already in default in that he had not served copy of the transcript, nor copy of the brief of evidence, nor copy of the amended motion for new trial on plaintiff or his counsel 15 days prior to said hearing (nor did he serve same at any time prior to said hearing). (f). No providential cause existed for granting said continuance, nor was there any evidence submitted to the court under oath, nor was plaintiff or his counsel present with opportunity to make a counter-showing as to the necessity or desirability of granting a continuance. Wherefore, it is considered, ordered, and adjudged that the said order of continuance as aforementioned be and the same is hereby revoked. Plaintiff's counsel then moved to dismiss the motion for new trial for all of the reasons set forth in his motion to revoke the order of continuance, and contended that the status of the case as of December 10, 1958, and also as of December 16, 1958, was controlling insofar as defendant's rights thereunder are concerned, and that because no brief of evidence had been presented, allowed, and filed within the time required by said orders and by law, that no proper motion for new trial was before the court. Plaintiff further contended that the original motion for new trial was a nullity in that it was presented to the court and the order of court allowing it filed and extending time for amending same and for filing brief of evidence, was all done in Richmond County, Georgia, and not in Columbia County, Georgia. Plaintiff further contended that copy of the amended motion for new trial was not served upon him until January 5, 1959, which was only 3 full days before the hearing on January 8, 1959, and that same was in violation of the requirements in the original and all subsequent orders of the court as to the motion for new trial in this case that same be served at least 15 days before the hearing. Defendant's counsel did not contest the facts as set forth herein, but did contend that the motion for new trial should not be dismissed. Wherefore, it is considered, ordered, and adjudged that the motion for new trial be and the same is hereby dismissed. This 8th day of January, 1959. G. C. Anderson, J. S.C. A. C.".
Defendant excepts to the refusal of the court to approve the proposed brief of evidence on January 6 and January 8, 1959, the refusal to allow the amendment to the motion for new trial on said dates and the judgments revoking the continuance and dismissing the motion for new trial.
1. This case has previously been considered upon different issues. See Reserve Life Ins. Co. v. Gay, 96 Ga. App. 601 ( 101 S.E.2d 158); reversed 214 Ga. 2 ( 102 S.E.2d 492); ruling of Supreme Court conformed to, 97 Ga. App. 320 ( 102 S.E.2d 928). The present appeal arises out of proceedings at and subsequent to a retrial of the case following the above decisions.
Counsel for the plaintiff has moved to dismiss the writ of error because of failure to brief the documentary evidence brought up in the bill of exceptions. The only question presented which is ripe for adjudication is whether the motion for a new trial was properly dismissed. In addition, it is well settled that an insufficient or defective briefing of evidence is not ground for dismissing a writ of error, although in such case assignments of error requiring consideration of the evidence will not be passed on. Boston Ins. Co. v. Harmon, 66 Ga. App. 383 ( 18 S.E.2d 84) and cases cited. The motion to dismiss the writ of error is therefore denied.
2. The first portion of the order of January 8, 1959, revokes a prior order granting the continuance upon the grounds set forth above. It should first be observed that there is no legal requirement in this State whereby prior notice of intention to apply for the continuance of any matter must be given to the opposing party or his counsel. This being true, a trial judge has authority to grant a continuance ex parte if he desires, although the exercise of such authority is manifestly a matter of judicial discretion. Once such a continuance is granted, however, such grant is not subject to revocation for the mere reason that it was ex parte and without prior notice to opposing counsel.
3. In this case the original motion for a new trial and rules nisi were properly served upon the opposite party and we are dealing solely with the question of the necessity for service of amendments to the motion for new trial and for service of the brief of evidence upon opposing counsel. It is well settled that there is no requirement of law for service of an amendment. The rule applies equally to an amendment to a motion for new trial, and where service of the original motion and rule nisi is duly made upon the respondent, it is his duty to follow the case and take note of everything regularly done therein. The order of the court requiring service of the amended motion on counsel for the respondent was an arbitrary limitation upon his right to amend and was without authority of law and nugatory. Allen v. Bone, 200 Ga. 765 ( 38 S.E.2d 609) and cases therein cited.
Likewise, there is no requirement of law for service of brief of evidence. It is true that Code (Ann.) § 24-3364 does in part provide: "Before presenting a brief of the testimony to the court for approval, the attorney whose duty it is to prepare it shall give written notice to the opposite party or his attorney of record of his intention to present the brief of the testimony to the trial court for approval at a certain time and place. No such brief of the testimony shall be approved by the trial court unless the opposite party or his attorney of record shall have been given such written notice or shall, in writing, have waived such notice." However, there is no requirement in this section or elsewhere that a copy of the brief of evidence be served upon the opposing party or his attorney.
In the case of Shirley v. Morgan, 170 Ga. 324, 328 ( 152 S.E. 831) the Supreme Court said: "There is no law requiring movant to present a copy of the brief of evidence to counsel for respondent. The brief of evidence, under the law, must be presented to the trial judge, who is the final arbiter of its correctness; but the trial judge, in order to expedite a proceeding, and in fairness to the opposite party, may in his discretion order that the brief be presented to opposing counsel. Since that matter rests within the discretion of the trial judge, it would seem to be just and proper that compliance with the order should also be subject to the discretion of the judge who had passed the order." What we hold here is simply that failure to serve opposing counsel with a copy of the brief of evidence or amendments to the motion for a new trial within the time stated in the trial judge's order does not place the movant in default so as to preclude a further extension of time for filing said brief, where, as here, movant has been allowed "until the hearing, whenever it may be, to prepare and present for approval a brief of the evidence." The granting of a continuance under such circumstances is a matter within the discretion of the trial judge, but, once granted, it cannot be revoked upon the ground that movant was in default at the time of his application for a continuance for failing to serve a copy of the brief of evidence or amendments to the motion for a new trial on opposing counsel.
Our ruling here is not in conflict with the provisions of Code § 70-302 and cases decided thereunder, which deal solely with service of original motions for new trial and rules nisi and have no application to service of a proposed brief of evidence or amendments. Nor do we intend to abridge the discretion of a trial judge in situations where, upon the date set for hearing the motion for a new trial, no brief of evidence has been presented to the court within the time prescribed in the order. See Dublin Hame Works v. Ross Mehan Foundry Co., 128 Ga. 399 ( 57 S.E. 683); Lambert Hoisting Engine Co. v. Bray Co., 127 Ga. 452 ( 56 S.E. 513) and cases cited.
In the case of Broadway Nat. Bank v. Kendrick, 124 Ga. 1053 ( 53 S.E. 576), the Supreme Court held that where an order required the movant to file a brief of evidence on or before a specified date prior to the hearing on the motion for new trial, "it was not within the power of the judge before the hearing and at a time when the court was not in session to extend, by an ex parte order, the time within which the brief of evidence should be filed." We are not dealing with such a situation in this case, however, in view of the specific provision in the rule nisi as to the time for filing of the brief. "Where a motion for a new trial is filed during term time and the rule nisi ordered during the term sets a time for hearing in vacation and allows the movant until the `final hearing' or the `hearing, whenever it may be' or words of similar import, the movant has until the hearing to file the brief of evidence and a continuance of the hearing whether by order or by operation of law also extends the time for the filing of the brief." Smoot v. Donaldson, 99 Ga. App. 191 ( 108 S.E.2d 295).
The grant of a continuance to movant in the instant case is not invalid for any of the reasons stated in the court's order revoking same. Having exercised his discretion in granting a valid continuance, the trial judge may not thereafter revoke his previous grant where, as here, manifest injustice would result therefrom.
4. We are aware of the decision of this court in Vinson v. State, 53 Ga. App. 224 (1) ( 185 S.E. 529), holding that there was no abuse of discretion on the part of the trial court in dismissing the motion for new trial for failure to serve the brief of evidence and the amended motion on the solicitor five days before the hearing, as required by the court's order. This decision is in direct conflict with Allen v. Bone, 200 Ga. 765, supra, insofar as it sanctions dismissal of the motion for failure to serve amendments on opposing counsel and must yield thereto. The Supreme Court has implied in Shirley v. Morgan,
170 Ga. 324, supra, that where failure to comply with an order requiring service of the brief of evidence on opposing counsel "has worked inconvenience or injury to the opposite party," the motion for a new trial might properly be dismissed, but its actual holding is simply that the trial court did not err in refusing to dismiss the motion for a new trial for failure to properly serve opposing counsel with a copy of the brief of evidence. While the validity of the decision of this court in Vinson v. State, 53 Ga. App. 224, supra, insofar as it sanctions dismissal of the motion for new trial for failure to serve a copy of the brief of evidence on opposing counsel, is open to question, particularly in view of the subsequent adoption by the legislature of specific requirements concerning preparation and presentation of the brief of evidence (Code § 24-3364), this point is not involved in the case at bar. At the time of the hearing on January 8th movant's counsel had fully complied with the terms of the court's order as to service of the transcript and brief of evidence on opposing counsel. The provisions requiring service of the amendments to the motion for new trial on opposing counsel were nugatory, as pointed out above, and, the failure to comply therewith is not a ground for dismissal of the motion.
5. For the reasons stated above, the trial court also erred in dismissing defendant's motion for a new trial upon the same grounds set forth in its order revoking the continuance. The additional stated reason that the original motion and accompanying orders were null and void because all were signed by the trial judge in Richmond County and not in Columbia County is without merit. See King v. Sears, 91 Ga. 577, 580 ( 18 S.E. 830) involving an almost identical factual situation.
6. The court erred in revoking its order of continuance and in dismissing the motion for a new trial. The judgments of the court are therefore reversed with direction that the court consider the proposed brief of evidence and amendments to the motion for a new trial for approval and allowance if the same are prepared in accordance with the requirements of law, including a proper briefing of the oral and documentary evidence, and, if the brief of evidence be approved, consider and pass upon the motion for a new trial and any amendments allowed thereto. Under the circumstances of this case the exception to the refusal of the court to grant a nonsuit is premature. The reversal of the judgment dismissing the motion for a new trial could have the consequence that the refusal to grant the nonsuit is moot, as it would be if the motion for a new trial is denied and is excepted to, or if a new trial is granted.
Judgments reversed. Quillian and Nichols, JJ., concur.