HYATT v. COWAN & COMPANY

Supreme Court of Georgia1902-06-06

115 Ga. 608

Summary · law.co

Holding. The trial court erred in overruling the motion to dismiss the motion for a new trial and in granting a new trial where the brief of evidence was not filed by the deadline set in the October 24 consent order. The judgment is reversed.

Cowan & Company obtained a verdict in their favor against Hyatt in Gilmer County Superior Court. Hyatt moved for a new trial, and the court initially allowed time to file a brief of evidence under the standard rules. Through successive continuances, the hearing was postponed multiple times. On October 24, 1901, the court entered an order—made by consent of both parties—explicitly setting November 16, 1901 as the deadline for filing the brief of evidence. When November 16 arrived, the brief had not been filed. Although counsel later agreed to postpone the hearing itself to November 18, this postponement did not extend the filing deadline. When Hyatt moved to dismiss the motion for a new trial based on the failure to file the brief by the agreed-upon date, the trial court overruled the motion and granted a new trial anyway.

The appellate court concluded the trial court erred. Once the parties consented to the October 24 order establishing November 16 as the filing deadline, that order became binding law for the case and could not be altered by a subsequent oral agreement to postpone only the hearing date. Because Hyatt departed from the statutory framework governing briefs of evidence by obtaining a consent order instead, Hyatt was required to comply strictly with its terms. Failing to file the brief by November 16 was a fatal defect that should have resulted in dismissal of the motion for a new trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Effect of a consent order setting a deadline for filing a brief of evidence
Whether a subsequent postponement of the hearing date extends the filing deadline
Strict compliance requirement when parties depart from statutory provisions by consent order

Procedural posture

Hyatt appealed the trial court's denial of his motion to dismiss the motion for a new trial and the subsequent grant of a new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lumpkin, P. J,

The case of Cowan & Co. against Hyatt came on for a hearing in the superior courtof Gilmer county, and on May 23,1901, a verdict was returned for the defendant. The plaintiffs filed a motion for a new trial, upon-which the usual rule nisi was granted. A separate order was passed, setting the motion down for a hearing on the 6th day of June. This order embraced the following : “ It is further ordered that the movant have until the hearing to prepare and present for approval a brief of the evidence in said case, and the presiding judge may enter his approval thereon at any time, either in term or vacation; and if the hearing of the motion shall bein vacation, and the brief of evidence has not been filed in the clerk’s office before the date of the hearing, said brief of evidence may be filed in the clerk’s office at any time within ten days after the motion is heard and determined.” By successive orders the hearing of the motion was regularly continued until October 24, 1901. In none of these orders was reference made to the filing of a brief of the evidence. On the day last named, the court passed the following order: “ Ordered by the court that the hearing of this motion be had at Marietta, Ga., on November 16, 1901, at 12 o’clock m., and that the plaintiff will be allowed till that time to file a brief of the evidence. Done by consent of parties. Oct. 24, 1901.” The motion was not heard on that date, but by agreement of counsel the hearingwas postponed untilNovember 18th. This agreement was silent with respect to the filing of a brief of the evidence. On that day counsel for the respondent “ moved to dismiss the motion for a new trial, on the ground that no brief of the evidence had been filed at the time set for a hearing in the order dated Oct. 24th, 1901.” The motion to dismiss was overruled, and the court rendered a judgment granting a new trial. Hyatt thereupon excepted both to the denial of his motion to dismiss and to the granting of a new trial.

We are clearly of the opinion that the motion to dismiss ought to have been sustained. Under the original order of May 23d, it was doubtless contemplated that Cowan & Co. should have until the final hearing to file a brief of the evidence, and none of the orders intervening between that date and October 24th made any change with respect to this matter. The order passed by consent of the parties on the latter date did, however, expressly undertake to limit the time for filing the brief to November 16th. That day came and went, and yet the brief of evidence was not filed. It was too late to file it afterwards. The mere agreement to postpone the hearing of the motion from November 16th to November 18th could

not, and did not, affect this matter. Cowan & Co. were bound by tbe terms of the order passed with their assent on October 24th. Railroad Co. v. Callaway, 111 Ga. 889. It became as to both parties the law of this case. Railroad Co. v. Johnson, 59 Ga. 626; Pease v. Pease, 66 Ga. 277; Eason v. Americus, 106 Ga. 179. Having departed from the statutory provisions with respect to the filing of a.brief of the evidence, it was incumbent on the movants to comply strictly with the terms of that order, for upon it alone could they rely in asserting any rights in the premises. Baker v. Johnson, 99 Ga. 374.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.