Seale v. Williams

Motion for new trial. Before Judge Gober. Milton superior court. February term, 1897. After verdict for plaintiff on March 1, defendants filed a motion for new trial. On March 2, during the same term, the court passed an order that the “ motion stand continued until March 16, and that it be heard at chambers, and that the movant have until said date to make out and file a brief of testimony, and perfect motion, without prejudice.” On March 15, counsel on both sides made a written agreement to continue the hearing of the motion until March 29, 1897, and allowing the parties until that time “ to agree on the brief of evidence which has already been made out by movant and furnished respondent, and that movant have till said time to perfect his motion.” On March 23, an agreement to the brief of evidence by counsel on both sides was entered thereon. There being a failure to hear th'e motion on March 29, counsel on both sides agreed to continue the hearing “ until the judge of said court shall come to Alpharetta to adjourn the February term of said court, or to such other time and place as may be agreed on by the counsel in ■said case.” The.motion came on for hearing on May 3. Plaintiff’s counsel then objected to the approval of the brief of evidence by the court, and moved to dismiss the motion for a new trial, on the ground that no brief of the evidence had been made ou't, approved, and filed as required by law. The court overruled the motion to dismiss, and approved the brief; The record contains an affidavit by counsel for the defendant, dated May 3, 1897, that “ the brief of evidence prepared and agreed to by the counsel in the case on March 23, 1897, was placed in the hands of the clerk of the superior court, and put with the motion and other papers in his office immediately after the agreement was signed by the attorneys in the case on March 23, 1897, within less than thirty days from . . the date of filing the motion.”