LAMBERT HOISTING ENGINE COMPANY v. BRAY & COMPANY

Supreme Court of Georgia1907-02-14

127 Ga. 452

Summary · law.co

Holding. The trial court's dismissal of the motion for new trial and denial of reinstatement are affirmed, as the trial judge did not abuse his discretion in refusing to continue the hearing based on counsel's claimed illness or in enforcing the requirement that an approved brief of evidence be filed.

Lambert Hoisting Engine Company filed a motion for new trial on March 21, 1905, and the court scheduled a hearing with orders requiring the movant to file an approved brief of evidence. The hearing was continued multiple times over several months until September 29, 1905. When the case was called, no approved brief had been filed. The movant's counsel claimed he was physically unable to proceed and that he had diligently attempted to obtain a transcript of the evidence from the official stenographer but was unable to do so. The trial court dismissed the motion for new trial, and when the movant later requested reinstatement based on counsel's illness and inability to obtain the transcript, that request was also denied.

The appellate court upheld both rulings. It held that trial judges have discretion to determine whether a lawyer's physical condition warrants continuing a hearing, and absent an abuse of discretion, appellate courts will not interfere with that decision. Similarly, judges have discretion to dismiss motions for new trial when required briefs of evidence are not filed and approved, even when the failure results from the stenographer's inability or unwillingness to provide the transcript. The court found no abuse of discretion in either the dismissal or the refusal to reinstate.

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

Key issues

Whether a trial judge abuses discretion in refusing to continue a hearing when counsel claims physical inability to proceed
Whether a trial judge abuses discretion in dismissing a motion for new trial when the required brief of evidence is not filed and approved
Whether unavailability of a court stenographer's transcript excuses failure to comply with briefing requirements

Procedural posture

The movant appealed the trial court's orders dismissing the motion for new trial and denying reinstatement thereof.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, J.

On March 21, 1905, a motion for new trial was filed and an order granted setting the hearing for a day in vacation, the order allowing the movant until the hearing — whether upon the date named or upon a subsequent date thereafter fixed— to have a brief of evidence approved and filed. The hearing by subsequent orders regularly granted was continued from time to time until September 29, 1905, the several orders preserving the rights of the parties as expressed in the original order. On the day last named, which was during a subsequent term of court, the •case was called, and there being no brief of evidence filed and approved, the court, upon motion, dismissed the motion for new trial. Leading counsel for the movant contended that he was sick and pthysieally unable to proceed with the hearing, and that his failure to have a brief of evidence complete was due to his inability to procure from the official stenographer a transcript of the evidence, and that he had exercised due diligence to obtain the same. After dismissal of the motion for new trial, the movant made a motion to reinstate the case, and, as cause therefor, insisted upon his physical inability to proceed with the hearing at the time the motion was dismissed, and also his inability to obtain from the stenographer the transcript of evidence. In support of this motion numerous letters were offered, constituting the correspondence between counsel for the movant and the stenographer, which were .sufficient to show due diligence upon the part of counsel to obtain the transcript. The -motion to reinstate was denied. Movant, within the time allowed by law, excepted to the ruling of the court in dismissing the motion, and as well to the ruling refusing to reinstate, and assigns error thereon.

Under the case of Rawlins v. State, 124 Ga. 33 (19), followed by Rowland v. State and Carter v. Pitts, 125 Ga. 792, it was for the judge to say whether the physical condition of counsel was such that the case should have been continued; and as he did not think the indisposition was such as-to require a continuance, we will not control his discretion.

Under the rulings made in the case of Western & Atlantic R. Co. v. Callaway, 111 Ga. 889, Boatwright v. State, 91 Ga. 13, Bryant v. Gray, 105 Ga. 483, and Eason v. Americus, 106 Ga. 179, we can not hold that the judge abused his discretion in dismissing the motion for new trial, on the ground that no brief of evidence had been approved and filed, or in refusing to reinstate the same upon the ground thatthe stenographer did not furnish the transcript of his stenographic report of the evidence.

The order of dismissal, being general, without specifying the particular ground of the motion to dismiss upon which it was based, will be construed as contemplating every ground included in the motion to dismiss; and it being necessary to affirm the judgment upon the grounds already stated, it is unnecessary to discuss other grounds specified in the motion to dismiss.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.