172 Ga. 237 | Ga. | 1931
Dissenting Opinion
dissenting. I can not concur in the rulings announced in the headnotes, for three reasons: (1) A motion to
In Phillips v. Taber, 83 Ga. 565 (10 S. E. 270), it was ruled, that, to set aside a judgment for absence from providential cause, the absentee must show not only that he was absent for such cause, but that he was unable to notify the court of his condition, and had a meritorious defense, and such other facts as would render it
In the present case, the only showing made to the court in the motion to set aside a judgment of dismissal may be summed up thus: The attorney for the plaintiff was in court and heard the case set for trial by the presiding judge for June 6, 1929. This order he was required by every rule to obey. As said by Mr. Justice Simmons in Seifert v. Holt, 82 Ga. 757 (9 S. E. 843), “Where parties have a case in court, it is their duty to attend and look after their interests. They can not remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them, especially where, by the exercise of the least diligence, they could have ascertained the time when the case was set for trial.” In that case lack of diligence in ascertaining the time the case was set for trial was one of the grounds. In the case at bar it is admitted by the motion to set aside that the absent party, or his counsel, was fully informed when the case was set for trial. Was the absence of movant’s counsel providential? By no means. Knowing that the case was set for a hearing on June 6, he put his own conclusions based upon when he thought cases set ahead of his would be reached, and was of the opinion that this case could not be reached before June 7, and probably not even then. Having determined to take the risk of disregarding the mandate of the court, and not even notifying the court of his judgment and determination as to when the case would be reached, he proceeded to accept another employment for a lady who had some matter of business of special importance necessary to be performed speedily, by reason of which he went upon another and different employment than that which he had been notified had been formally set for trial by the court. It would become quite immaterial what orders the court might give in the conduct of his business, if the direction given by the court can be thus set aside.
There is a wide discretion allowed to all trial courts in passing upon the merits of a motion for a continuance; but after all, it must be the court, and not counsel, that is to measure the merits of a motion for a continuance, and to determine when tbe case should be continued or whether the case should not be continued, on ac
This case is very similar to that of Watkins v. Ellis, 105 Ga. 796 (32 S. E. 131), in that it plainly appears that plaintiff’s counsel, in shaping his conduct, took the risk of the opposite party objecting to a postponement of the case and insisting upon a trial of the case
In McCall y. Miller, 120 Ga. 262 (47 S. E. 920), Mr. Presiding Justice Eish, delivering the opinion of the court, said: “The view we take of the case renders it unnecessary to pass on the motion for a new trial. In our opinion, the general ground of the demurrer to the petition as amended should have been sustained. Considering the facts alleged in the petition and ignoring the mere conclusions of the pleader, the petitioner was not entitled to the relief for which she prayed. When a regular term of court is adjourned over to a subsequent term, all parties and their attorneys having business in the court are bound at their peril to take notice of such adjourned term. Rawson v. Powell, 36 Ga. 255.” The court then cited a number of authorities as to the rule permitting a judgment to be set aside, especially during the term, for absence of the defendant from providential cause, among them some cases already referred to herein; and said: “Again, in Phillips v. Taber, 83 Ga. 565 (4), it was held that to set aside a judgment for defendant's absence from providential cause, he must show, not only that he was absent from such cause, but unable to notify the court of his condition.” Construing the present petition in the light of the statement that absence from an adjourned term is at the peril of parties who have been notified to take notice thereof, as the plaintiff was notified at his peril to appear on June 6, 1929, and in order to meet the general demurrer to the petition to reinstate the case, it should have been alleged, not only that his absence was due to providential cause, but that he was unable to notify the court of his condition. In Sims v. Sims, 135 Ga. 439 (69 S. E. 545), and Cannon v. John B. Daniel Inc., 153 Ga. 523 (113 S. E. 186), it was held that it is essential that á petition to set aside a judgment must contain an allegation that counsel was unable to notify the court of his condition, even when the absence was from providential cause; and I think that the reason for the rule, as well as the rule itself,- is applicable in cases where the absence of counsel is unavoidable, due to accident or misfortune, even though the same be not providential; but none of these rules can be applied .to a case of deliberate and predetermined absence from the court on
Lead Opinion
1. In the circumstances shown by the record in this case it was within the discretion of the judge to reinstate the case at the same term at which it ivas dismissed. In so doing his discretion was not abused.
2. No error requiring a reversal of the judgment refusing a new trial is shown.
Judgment affirmed.