Phillips v. Blackwell

On the call of this case the plaintiff in error was unrepresented; and counsel for the defendant in error moved the court to open the record, and insisted on an affirmance of the judgment and an award of ten per cent, damages for delay.

The judgment of the court below is hereby affirmed (Civil Code, § 6249, rule 30); but the motion of counsel of the defendant in error for this court to open the record and award ten per cent, damages against the plaintiff in error for delay is denied, it not sufficiently appearing that the writ of error was sued out for delay only. This case differs from Holland v. Brooks, 40 Ga. 94 (2); Howser v. Evans, 40 Ga. 157; Porter v. Kolb, 46 Ga. 266; Eagle Mfg. Co. v. Wise, 48 Ga. 630; Brown v. Brown, 51 Ga. 554; Collins v. Mobile Fruit &c. Co., 108 Ga. 752 (32 S. E. 667); Osborn &c. *738Co. v. Blanton, 109 Ga. 196 (3) (34 S. E. 306); Southern Ry. Co. v. Hooper, 110 Ga. 779 (3) (36 S. E. 232); Wright v. Hartsfield, 111 Ga. 819 (35 S. E. 640); Brooks v. Proctor, 111 Ga. 835 (2) (36 S. E. 99); in which cases writs of error were sued out to review judgments overruling motions for new trial, based upon the grounds that the verdicts were without evidence to support them, or where no briefs of evidence had been prepared and approved and brought to this court. In the case at bar, the motion for new trial was filed in time, and an order taken giving the movant until the hearing to amend his motion for new trial, and to perfect the samé; and at the hearing movant offered to perfect his motion for new trial by filing and having approved a brief of the evidence. The court held that under this order movant was not relieved from filing a brief of the evidence within the time required by law; and for this reason dismissed the motion for new trial. Movant sued out the present writ of error to review that judgment. Under the circumstances it does not sufficiently appear that the writ of error was sued out for delay only.

Judgment affirmed.