Truett v. Legg

Stewart, J., delivered the opinion of the Court. This was an action of assumpsit brought by the appellants against the appellee. On the 24th of April, 1867, during the April term of the Court below, a verdict was rendered for the plaintiffs, but no judgment, absolute or nisi, was rendered or entered thereon against the defendant. On the 26th of April, 1867, the defendant filed a motion, and reasons for a new trial, and no day appears to have been fixed for its hearing, nor rule upon the plaintiffs to show cause against it, at any prescribed time.

The case thus standing, and several terms having intervened, on the 10th of March, 1868, a writ of execution was issued by order of the plaintiffs. The defendant moved on the 20th of April, 1868, to quash the same; and assigned as reasons therefor, that the execution was void, and that it could not properly issue, whilst his motion for a new trial was undisposed of. To the granting of this motion, the plaintiffs filed their objections. At the January Term, 1869, the plaintiffs shewed cause against granting the defendant’s motion for a new trial, that the defendant had not prosecuted his motion for a new trial during the term at which it was made, or the next succeeding term, and not having been continued by any order of the Court, had ceased to operate, when the execution issued, ánd that the Judge before whom the case was tried had gone out of office under the Constitution of 1867, and the existing Court was not competent to dispose of the motion, inasmuch as they were not the Court before which the case was tried.

The Court below ordered the execution to be quashed, and a new trial to be had. ¹⁴⁹ The plaintiffs have excepted to this ruling. The record docs not furnish any rules of the Court below regulating the practice in this particular, and we must dispose of the question involved according to our apprehension of the practice which has prevailed in this State. In the absence of any rule of the Court below upon the subject, the counsel for the appellants has referred us to authorities shewing the English practice, and that of some of our sister States, which have adopted the same practice. According to this practice, where no time is prescribed for the hearing of the motion for a new trial, it is the duty of the party making the motion to have it disposed of during the term; and if he is not ready to support it, he may move to enlarge it to a future day in the same term, or in the next, but the Court will not enlarge the rule without consent, or °some evident necessity. “ If not brought on or enlarged during the term, it is of no effect unless revived, as it may be, in any future term, upon motion to revive it.” 1 Tidd’s Prac., 502; Kane vs. Burris, 2 Smedes & Mar., 313; Buckner vs. Conley, 1 Monroe, 3.

Such, however, has not been the course of proceeding in this State, but according to our practice the general continuance of the cause carries with it all incidental motions, unless specially ordered otherwise. The motion for a new trial will go over to the next term,