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41 Ga. 577

Vanover v. Turner

Supreme Court of Georgia

Decided January 15, 1871

Supreme Court of Georgia · decided 1871-01-15

<p>Motions for New Trials. Amendments. Before Judge Harrell. Terrell Superior Court. November Term, 1870.</p> <p>This cause was ejectment. At May Term, 1869, there was a verdict for the plaintiff. A motion for new trial was made on various grounds; a brief of the evidence was made up and plaintiff’s attorney agreed that it was correct, but claimed that a certain deed mentioned therein should be set out in extenso; a copy of this deed was attached to said brief, and the motion in this shape was submitted to the Judge. He passed a rule nisi calling upon the plaintiffs’ counsel to show cause, at the next term, why a new trial should not be granted. From the record it appears that this rule nisi was issued after the brief was amended by the addition of the copy deed to said brief of the testimony. Whether this is true is made doubtful by the bill of exceptions.</p> <p>It states as follows: “At the next term, when this motion came on to be heard, the Judge, exsuo mero motu, dismissed the motion upon the ground that the brief of evidence in said *case had not been approved by the Court, and because said copy deed was not embodied in said brief, when in fact said copy deed was appended to said brief.- Movants’ counsel offered then to embody the copy in said brief, and then submit it to the Court for approval. This the Court would not allow, and without examining the brief of evidence, refused to hear the motion for a new trial.” His refusal to allow the brief amended as proposed, and his dismissal of the motion, are assigned as error.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1871-01-15

How this case has been cited

Cited by 4 later decisions — most recently June 1946

4 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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McCAY, J.

¶1I. Whether the agreement of counsel to’ the brief of evidence on a motion for a new trial supercedes the necessity of its approval and revision by the Court, does not seem ever to have been distinctly' decided by this Court. The cases are numerous in which it is implied that the agreement of counsel is sufficient: 1st Georgia, 254; 3d, 220; 7th, 436; 8th, 111; 10th, 93; 13th, 403. But in none of these cases was the point actually involved in the decision.

¶2In this case the Judge had granted a rule nisi for a new trial. The law requires the brief of the testimony to be filed, approved and revised, at the time the motion is made, and we think the act of the Court granting the new trial is a presumptive approval of the brief. If it has been agreed upon, nobody else, in such a case, can complain but the Judge, and having granted the rule, as it seems to us, he may fairly be presumed to have no cause of complaint. For myself, I think, so far as the actual brief of the testimony is concerned, the agreement of the parties super-cedes the necessity of the approval of the Judge. The rule of *579Court applies to cases when application is ex parte. The parties *might consent to a new trial, and I am not able to see why they might not agree to the brief of the testimony. We put the case, however, on the other ground. The granting of the rule nisi was an approval, if the parties had agreed to the brief presented.

¶32. Section 3429 of the Code is general, that all proceedings may be amended at any stage of the cause, and we see no reason why, if the ends of justice require it, a motion for a new trial should not abide by the same law.

¶4Judgment reversed.

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