Filing in clerk's office required.

- It is essential for validity of motion that the motion be filed in the clerk's office and until the motion is so filed the motion is a mere private paper. Acknowledgment of service of such private paper, purporting to be a motion for new trial, is a mere nullity, and service as required by statute is not perfected. Atlantic Coast Line R.R. v. McNair, 96 Ga. App. 519, 100 S.E.2d 639 (1957).

When motion has been delivered to clerk for filing, the motion is deemed filed, even though that officer fails to make proper entry of filing thereon. Brinson v. Georgia R.R. Bank & Trust Co., 45 Ga. App. 459, 165 S.E. 321 (1932).

Judge may hand papers to clerk to be filed. Sanders v. Williams, 73 Ga. 119 (1884).

Service upon attorney of copy of motion satisfies statute.

- Although caption of motion for new trial does not name defendant as party, service upon the defendant's attorney of copy of the motion is compliance with service requirement of statute. Hughes v. Newell, 152 Ga. App. 618, 263 S.E.2d 505 (1979).

Service may be made by movant's attorney and entry of service verified by affidavit. Lee v. Cox, 15 Ga. App. 249, 82 S.E. 941 (1914).

Failure to perfect service of a motion for new trial in accordance with O.C.G.A. § 5-5-44 renders the motion void. Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003), cert. denied, 543 U.S. 820, 125 S. Ct. 59, 160 L. Ed. 2d 29 (2004).

When service is improper, fact that defendant actually receives notice is immaterial.

- It is immaterial and does not provide proper service that the defendant actually receives motions for new trial sent through the mail or, in some way, learns of filing of motion for new trial. Dunn v. Dunn, 221 Ga. 368, 144 S.E.2d 758 (1965).

Service of amendments to motion for new trial, see Fleming v. Roberts, 114 Ga. 634, 40 S.E. 792 (1902); Robert Portner Brewing Co. v. Cooper, 116 Ga. 171, 42 S.E. 408 (1902).

Unless time is fixed, service should be in ample time for preparation for hearing.

- When rule nisi granted upon application for new trial, or in any order passed continuing hearing upon motion for new trial, there is no limitation of period within which service of rule nisi or other order should be perfected, such service as will give opposite party a reasonable opportunity to prepare for hearing upon motion for new trial and to resist the hearing is sufficient service. Connor v. State, 7 Ga. App. 83, 66 S.E. 482 (1909).

While no specific time is prescribed by statute within which respondent shall be served with copy of rule nisi issued upon application for new trial, it has been held that service must be had a reasonable time before hearing, and that such service is essential unless waived. Peavy v. Peavy, 167 Ga. 219, 145 S.E. 55 (1928).

When no time is fixed within which service of motion for new trial shall be effected, such service may be perfected even after the hearing of the motion for new trial has been continued, if there be service upon opposite party at such time before the date set for final hearing as will enable opposite party to prepare to resist grant of motion. Webb v. Nobles, 195 Ga. 287, 24 S.E.2d 27 (1943).

When no time for serving copy of rule nisi is fixed by presiding judge, it should be served in ample time for opposite party to prepare for hearing. Trammell v. Throgmorton, 210 Ga. 659, 82 S.E.2d 140 (1954).

Compliance prior to second hearing with order issued regarding first hearing was sufficient.

- Rule nisi granted on motion for new trial set hearing for fixed date, and directed that motion be served on opposite party "five days prior to the hearing." On the date fixed for the hearing the trial judge granted an order postponing the hearing to a later date, making no other order as to service. The motion for a new trial was not served five days before the date fixed for the first hearing, but it was duly served five days prior to the date as fixed for the subsequent order of postponement. The court held this was sufficient. Johnson v. State, 4 Ga. App. 850, 62 S.E. 540 (1908).

Term "opposite party" defined.

- As regards applications for new trial, term "opposite party" will include all persons, if more than one, who were parties to case and who are interested in sustaining the verdict. Carmichael v. City of Jackson, 194 Ga. 664, 22 S.E.2d 470 (1942); Almon v. Citizens & S. Nat'l Bank, 108 Ga. App. 799, 134 S.E.2d 435 (1963).

Codefendant who has interest in sustaining verdict is entitled to notice.

- When codefendant has an interest in sustaining the verdict of the jury and judgment of the court, the codefendant is a necessary party to a motion for new trial and must be served with a copy of the rule nisi. Almon v. Citizens & S. Nat'l Bank, 108 Ga. App. 799, 134 S.E.2d 435 (1963).

When waiver of service results.

- Waiver results when party appears and pleads to merits, or when the party appears and argues matters collateral to motion in manner to indicate that party must have been served, or must have waived service. Dunn v. Dunn, 221 Ga. 368, 144 S.E.2d 758 (1965).

Waiver of service results when opposite party appears to argue motion. Baldwin v. Daniel, 69 Ga. 782 (1883); Hopkins v. Jackson, 147 Ga. 821, 95 S.E. 675 (1918).

When rule nisi, issued upon filing of motion for new trial, was not served on respondent, and service was not expressly waived, but agreement was made in open court by counsel for respondent, to passage of order setting hearing upon motion at designated time and place, which agreement was recited in order, and counsel for respondent afterwards appeared at time and place set for hearing on motion, these facts amount to waiver by respondent, through counsel, of service of rule nisi. Beeland v. Butler-Payne Lumber Co., 44 Ga. App. 603, 162 S.E. 303 (1932).

Waiver does not result by informing movant's counsel that certain day is suitable to respondent. Smedley v. Williams, 112 Ga. 114, 37 S.E. 111 (1900).

Acknowledgment of service of order merely continuing hearing of motion to another date is insufficient to dispense with service of copy of rule nisi. Thornton v. State, 16 Ga. App. 210, 84 S.E. 973 (1915).

Discretion of judge to dismiss untimely served motion.

- When time fixed for hearing arrives, and no service has been effected, it is generally a matter in sound discretion of trial judge whether to dismiss motion or to continue final hearing until service is perfected. Webb v. Nobles, 195 Ga. 287, 24 S.E.2d 27 (1943); Trammell v. Throgmorton, 210 Ga. 659, 82 S.E.2d 140 (1954).

Judgment dismissing motion for new trial, on motion of respondent made at time set for hearing, is not an abuse of trial court's discretion when there has been no personal service on respondent or any waiver of such service. Braziel v. Hunter, 103 Ga. App. 854, 121 S.E.2d 39 (1961).

When there was neither service nor written waiver of service upon opposite party of rule nisi issued in connection with motion for new trial, and when, at first opportunity and before either expressly or impliedly consented to completion of motion or judicial consideration upon the motion's merits, the respondent moved to dismiss the proceeding for want of such service, court did not err in dismissing the motion. Jackson v. State, 24 Ga. App. 594, 101 S.E. 710 (1919).

Dismissal is proper when service is not proved. Strickland v. Bell, 144 Ga. 494, 87 S.E. 398 (1915).

Failure to attach rule nisi to motion for new trial does not demand dismissal of motion. Trial judge in the judge's discretion may dismiss the motion or continue matter until motion is perfected. Stoner v. McDougall, 235 Ga. 171, 219 S.E.2d 138 (1975); Craig v. Holsey, 264 Ga. App. 344, 590 S.E.2d 742 (2003), cert. denied, 543 U.S. 820, 125 S. Ct. 59, 160 L. Ed. 2d 29 (2004).

Dismissal when no rule nisi served, and requirement not waived.

- When the defendant files a motion for new trial, but no rule nisi is attached nor copy of the rule nisi served upon the state, nor does the state waive this requirement, there is no abuse of discretion by the trial court in dismissing the defendant's motion for new trial. Griggs v. State, 167 Ga. App. 581, 307 S.E.2d 75 (1983).

Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, §§ 322 et seq., 340 et seq.