Opinion
39556.
DECIDED JUNE 25, 1962.
Illegally possessing whisky. Millen City Court. Before Judge Strickland.
Spivey Carlton, for plaintiff in error.
J. P. Cheney, Solicitor, contra.
B. L. Wiggins was tried and convicted in the City Court of Millen on an accusation charging him with the possession of an excessive amount of legal whisky in a dry county. Upon the hearing on the defendant's motion for new trial the solicitor of said court filed a motion to dismiss the motion for new trial on the ground that he had not been served with a copy of the motion and rule nisi. The trial judge entered an order sustaining the motion to dismiss, it being recited in said order that the defendant had offered no reason as to why service was not made. The exception is to that judgment. Held:
"A judgment dismissing a motion for new trial, on motion of the respondent made at the time set for hearing, is not an abuse of the trial court's discretion where there has been no personal service on the respondent or any waiver of such service." Braziel v. Hunter, 103 Ga. App. 854 (3) ( 121 S.E.2d 39); Webb v. Nobles, 195 Ga. 287 ( 24 S.E.2d 27); Pierce v. State, 52 Ga. App. 10 ( 182 S.E. 60). Since the record in this case discloses that at the time set for hearing of the defendant's motion for new trial, there had been no service of the motion and rule nisi upon the solicitor and no waiver of service by him, it cannot be said that the trial judge abused his discretion in sustaining the motion to dismiss the defendant's motion for new trial.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.