Cain v. Banka

George C. Allen, as administrator of the estate of Haskell Campbell, by petition in the Superior Court of Stephens County, sought a judgment directing him to whom he should make distribution of the estate of his intestate, consisting only of personal property. The only question before the court was whether Richard Donald Campbell was a legitimate son of Pam R. Campbell, a deceased brother of the intestate. It was stipulated that, if he was a legitimate son and heir of Pam R. Campbell, he was entitled to a one-fourth distributive share; and if not, the entire estate should be divided among the brother and two sisters of the intestate. The Judge on a trial of the issues without the intervention of a jury, ruled that Richard Donald Campbell was the illegitimate son of Pam R. Campbell, and directed the administrator to distribute the estate equally between the brother and sisters of the intestate. Richard Donald Campbell made a motion for a new trial on the general grounds during the term at which the judgment was rendered, and the court issued a rule nisi returnable on March 3, 1951, in vacation, providing that the movant had the right "until the hearing, whenever it may be, to prepare and present 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. Counsel for the plaintiff acknowledged service on this motion and order, in the following words: "Due and legal service of the within motion and order acknowledged; time, copy, and all other and further service waived." By consent of the parties the court, by order, continued the hearing on the motion until 2 p.m., March 16, 1951. On that date counsel for the plaintiff moved the court in writing to refuse approval of the brief of evidence, on the ground that the defendant had failed to comply with Rule 19 of the Rules of Practice and Procedure for Appeal or Review, as provided by the act of 1946 (Ga. L. 1946, pp. 726, 744; Code, Ann. Supp., § 24-3364), in that the defendants counsel had not given the plaintiff or his counsel notice in writing of his intention to present a brief of the evidence to the trial court for approval, at a certain time and place as required by the rule. On April 11, 1951, the court entered an order striking the plaintiffs motion that the court refuse approval of the brief of evidence, and denied the motion to dismiss the motion for a new trial. It appears from the record that, at the end of the transcript of the evidence, counsel for all parties stipulated in writing as follows: "Without waiving any rights under written motion filed on March 16, 1951, objecting on grounds therein stated, we agree that the within and foregoing fifteen pages is a correct transcript and brief of the evidence adduced in the trial of the case of George C. Allen, Admr. of Haskell Campbell, deceased, vs. Lexis Campbell, Genie McCann, Early Campbell, et al. April 11, 1951"; and, under this stipulation, appears an order of the court, bearing the same date, approving the brief of evidence. On the same date the court entered an order denying the defendants motion for a new trial.