Opinion
38810.
DECIDED MAY 18, 1961. REHEARING DENIED JUNE 2, 1961.
Action for damages. Gwinnett Superior Court. Before Judge Clinkscales.
Joseph E. Cheeley, for plaintiff in error.
Merritt Pruitt, Glyndon C. Pruitt, contra.
1. It is a prerequisite to the review of a judgment of the trial court approving a brief of evidence over objection that the objecting party shall have specified in the trial court the alleged defects in the purported brief of evidence with sufficient particularity and definiteness to show wherein the purported brief of evidence was incorrect, incomplete or otherwise improper, so as to enable said brief to be amended and corrected in the trial court and to provide a basis of review of the order thereon.
2. A motion for a continuance of the hearing on motion for new trial is addressed to the sound discretion of the trial judge, and in the absence of a clear showing to the contrary, it will be presumed that such discretion was not abused.
DECIDED MAY 18, 1961 — REHEARING DENIED JUNE 2, 1961.
Mrs. Calvin Feagins filed suit in the Superior Court of Gwinnett County against Hubert Whidby to recover damages arising out of an automobile collision. The case was tried before a jury on December 8 and 9, 1960, and a verdict returned in favor of the defendant. Thereupon, on December 12, 1960, the plaintiff filed a motion for a new trial and the trial judge issued a rule nisi for a hearing on the motion for new trial for December 21, 1960. On December 20, 1960, counsel for the plaintiff submitted a purported brief of evidence to counsel for the defendant and on December 21, 1960, counsel for the defendant filed a written motion for a continuance of the hearing on the motion for new trial on the ground that the defendant had not had ample time to prepare a brief for the hearing and had not had available a transcript of the record and charge of the court. The motion for continuance was overruled by the trial judge at the hearing held on December 21, with leave for counsel for both parties to file written briefs within three days. Upon the presentation of the brief of the evidence by the plaintiff in connection with his motion for a new trial, the defendant filed written objections to the same which were overruled by the trial judge. Thereafter, on December 27, 1960 the trial court entered an order granting the plaintiff a new trial on the general and four special grounds. Error is assigned on the judgment granting the new trial and on the antecedent judgments of the trial court overruling the defendant's motion for a continuance and overruling the defendant's objections to the brief of evidence and approving the same.
1. A correct brief of the evidence is essential to the validity of a motion for a new trial. Pendergrass v. Duke, 140 Ga. 550, 552 ( 79 S.E. 129); Groves v. Groves, 177 Ga. 768 ( 171 S.E. 261); Dollar v. Fred W. Amend Co., 186 Ga. 717 ( 198 S.E. 753); Roberson v. Roberson, 199 Ga. 627 (1) ( 34 S.E.2d 836). It is the duty of the trial judge to make the brief of evidence correct before ordering it filed as a part of the record. Cochran v. Jones, 85 Ga. 678 (8) ( 11 S.E. 811). Where the judge improperly approves the brief of evidence, direct exception may be taken to the order of approval over objection, or a motion may be made to vacate the order of approval, and if refused, direct exception may be taken thereto. Mann v. Tallapoosa Street Ry. Co., 99 Ga. 117 ( 24 S.E. 871); Murray v. Davidson, 174 Ga. 213, 219 ( 162 S.E. 526). In either event, however, it is a prerequisite to a review of the judgment of the trial court that the objecting party shall have specified in the trial court the alleged defects in the purported brief of evidence with sufficient particularity and definiteness to show wherein the purported brief of evidence was incorrect, incomplete or otherwise improper, as to enable said brief to be amended and corrected in the trial court and to provide a basis of review of the order thereon. Tate v. Griffith, 83 Ga. 153, ( 9 S.E. 719); Lewis v. Equitable Mortgage Co., 94 Ga. 572 ( 21 S.E. 603); Hood v. Culver, 95 Ga. 120 ( 22 S.E. 123); McDonald v. Wimpy, 203 Ga. 498 (1) ( 50 S.E.2d 328). To the brief of evidence presented for approval by the plaintiff in the trial court the defendant filed written objections on the ground that the purported brief did not properly represent the evidence produced upon the trial of the case, that the same was incomplete and incorrect, and was presented in a slanted and untrue perspective from the evidence as presented upon the trial of the case. Since these objections are too vague, general and indefinite to present any question for review and since it is not shown in the writ of error that more specific objections were made in the trial court, the judgment of the trial court overruling the objections and approving the brief of evidence must be affirmed.
2. A motion for a continuance of the hearing on motion for new trial is addressed to the sound discretion of the trial judge, and in the absence of a clear showing to the contrary, it will be presumed that such discretion was not abused. Boatright v. State, 91 Ga. 13 ( 16 S.E. 101); McKoy v. Hardy, 92 Ga. App. 525 ( 88 S.E.2d 708); Digsby v. Johnson, 82 Ga. App. 611 ( 61 S.E.2d 792). It cannot be said that the trial judge abused his discretion in the instant case in overruling the defendant's motion for a continuance.
3. Since the argument of counsel for the defendant was directed to the alleged errors considered above and not to the merits of the judgment granting the new trial, the same being the first grant of a new trial in this case, the assignment of error on that judgment is considered abandoned.
Judgment affirmed. Townsend, P. J., and Frankum, J., concur.