Summary
In Wood v. Sheppard, 100 Ga. App. 376, 379 (111 S.E.2d 242), Judge Quillian, now Justice Quillian, pointed out that if a trial court refuses to certify a brief of evidence containing only the material facts a writ of error would lie to such judgment.
Summary of this case from Johnson v. HamnerOpinion
37810.
DECIDED OCTOBER 8, 1959.
Action for damages. DeKalb Civil Court. Before Judge Mitchell. May 28, 1959.
Wilson, Branch Barwick, M. Cook Barwick, J. Frank Ogletree, Jr., for plaintiffs in error.
M. M. Armistead, contra.
1. A motion for a judgment non obstante veredicto is not permissible under the rules of procedure of this State where a judge presides over a trial without intervention of a jury.
2. The law prescribes the rules under which a brief of evidence is approved by the trial judge. It is error to require opposing attorneys to agree as to the correctness of a brief of evidence as a prerequisite to submitting it to the trial judge.
DECIDED OCTOBER 8, 1959.
Lee E. Sheppard, defendant in error, instituted a suit in tort in the Civil Court of DeKalb County against Ralph T. Wood and Gas, Inc., plaintiffs in error. The case was tried before the judge without a jury. Before any proof was submitted the judge expressly warned counsel for the respective parties that unless the evidence was stenographically reported he would not be able to remember the evidence because of the great number of cases being tried before him. However, counsel declined to have a stenographic report of the evidence. At the conclusion of the trial the plaintiffs in error made a motion for a directed verdict. The judge took the matter under advisement on August 19, 1958, and on September 3, 1958, a judgment was entered against the plaintiffs in error. Within due time allowed by law, the plaintiffs in error presented to the trial judge a brief of evidence, together with a motion for new trial, and a motion for judgment notwithstanding the verdict. The brief of evidence was made from the plaintiffs in error's trial notes as the case was not reported by a court reporter. A hearing was set for considering the brief of evidence and the motions for October 24, 1958. On the day appointed the plaintiffs in error appeared, but opposing counsel was absent. The trial judge directed counsel for the plaintiffs in error to contact the opposing attorney and agree on the brief of evidence. On October 27, 1958, the plaintiffs in error requested the trial judge to read the brief of evidence and set a new hearing date. The trial judge wrote counsel for the plaintiffs in error that it would be necessary for the trial attorneys to agree on the correctness of the brief of evidence. The matter came on for a hearing in regular order on October 24, 1958. Counsel for the defendant in error was absent, and the trial judge again requested counsel for the plaintiffs in error to contact the defendant in error's counsel and obtain an agreement as to the brief of evidence. On the same day counsel for the defendant in error refused to co-operate, to read or discuss the brief of evidence, or attend a hearing. On December 16, 1958, counsel for the plaintiffs in error again tendered the brief of evidence to the trial judge. An order was entered on February 5, 1959, reading as follows: "The within motion for a new trial coming on regularly on the demurrer calendar, the evidence in said case not being reported and there being no agreement as to the brief of evidence by the attorneys for the plaintiff and defendant: Therefore, said motion for a new trial is hereby overruled." The plaintiffs in error appealed this ruling to this court in Wood v. Sheppard, 99 Ga. App. 537 ( 109 S.E.2d 69) in which this court held the appeal was premature in that there was a motion still pending before the trial judge yet to be ruled upon. On May 28, 1959, an order was entered reading as follows: "The above stated case was tried before the court without a jury and it being the opinion of this court that where a motion made notwithstanding the verdict in a case where there has never been a verdict, only a judgment, motion is a mere nullity. Therefore, this court is overruling the motion notwithstanding."
From the orders of February 5, 1959, and May 28, 1959, the plaintiffs in error except.
1. The court in ruling on the previous appeal of this case did not pass on the merits of the motion of the plaintiffs in error for a judgment notwithstanding the verdict. It merely noted that a motion was pending. The trial judge is correct in denying the motion for judgment notwithstanding the verdict. The judge's ruling is a judgment and not a verdict. Such a motion is not permissible under our State rules of procedure when a judge presides without an intervention of a jury. This case is controlled by Smith v. General Motors Acceptance Corp., 98 Ga. App. 840 ( 107 S.E.2d 334), and Associates Discount Corp. v. Parlier, 98 Ga. App. 740 ( 107 S.E.2d 238).
2. It is the duty of the trial judge to certify a brief of evidence when duly presented by counsel unless the brief of evidence is incorrect or the trial judge can not remember the evidence distinctly and sufficiently to correct the brief of evidence. Code (Ann.) § 70-301; Bugg v. State, 13 Ga. App. 672 ( 79 S.E. 748). If the brief of evidence is incorrect and if there has been a bona fide effort to comply with the law, the usual practice is not to dismiss the motion for new trial, but to allow a reasonable opportunity to correct it ( Cannon v. Gaines, 199 Ga. 277, 34 S.E.2d 103; Norred v. State, 127 Ga. 347 (3), 56 S.E. 464), and to point out the particulars for correction. Camp v. Curry-Arrington Co., 46 Ga. App. 17 ( 166 S.E. 428).
There is no requirement that the opposing counsel must agree before submitting the brief of evidence to the trial judge. In Bugg v. State, 13 Ga. App. 672, 673, supra, it is held: "It is plain that the trial judge dismissed the motion for new trial because the movant's counsel had not procured a transcript of the stenographic report of the official stenographer, and because for this reason the solicitor of the city court would not agree to the brief of the evidence as presented by counsel for the movant. It does not appear from the petition for certiorari, that the judge of the city court could not remember the testimony, and for this reason was unable to correct the brief, nor does it appear that the court called the attention of the movant's counsel to those particulars wherein the brief of evidence was incorrect, and that counsel refused to correct it in accordance with the recollection of the court. If the judge had stated in the order that he was unable to remember the testimony delivered on the trial ( Martin v. Mendel, 10 Ga. App. 417, 73 S.E. 620), or even if he had stopped with the statement that he declined to approve the brief because it was incorrect, nothing would be presented for review. It seems plain to us, however, from a reading of the order, that the dismissal of the motion was based upon the fact that the solicitor of the city court would not agree to the brief as presented, and the movant's counsel had not procured a transcript of the stenographic report of the official stenographer."
In Price v. High Co., 108 Ga. 145, 149 ( 33 S.E. 956) it was held: "The law does not require the approval of the brief of evidence by opposing counsel. He has nothing to do with it. The law requires the brief to be approved by the trial judge only. It may be necessary for him to have the full stenographic report written out, in order to ascertain whether the material evidence is all embraced in the brief of evidence presented to him. This he can require. Central R. Co. v. Robertson, 92 Ga. 741. If a brief of evidence containing only the material facts should be presented to a trial judge and he refuse to approve it, a bill of exceptions would lie to this refusal."
The Bugg case was considered and held as controlling in Camp v. Curry-Arrington Co., 46 Ga. App. 17, supra, in that the only criterion for passing on the sufficiency of a brief of evidence is whether or not it speaks the truth of the material facts of the trial regardless of the views of opposing counsel.
The trial judge's order clearly reveals that he did not examine the brief of evidence to ascertain whether it contained an accurate account of the evidence adduced on the trial, but that he assumed, for certain reasons, that he would not be able to recall the evidence.
The rationale of what is here held, is not that the trial judge must certify whether the brief of evidence contains or does not contain the evidence adduced upon the trial, but that he determine after examining the document whether, with his memory thus aided, he can recall what transpired on the trial well enough to enter an order of approval or disapproval, or direction that the brief of evidence be corrected to conform with his memory of the evidence, he should enter such an order. If on examination of the document tendered him as a brief of evidence, he can not remember the evidence admitted on the trial, there is no requirement of law that he enter any order. The plaintiffs in error are entitled to the benefit of the judge inspecting the proposed brief of evidence, since the reading of it may refresh his memory and enable him to recall the evidence well enough for him to enter his approval of it. The law contemplates that the judge examine the brief of evidence and determine from his perusal of it whether or not he will approve or refuse to certify it as correct.
Judgment affirmed in part, and reversed in part. Felton, C. J., and Nichols, J., concur.