153 Ga. 523 | Ga. | 1922
Lead Opinion
(After stating the foregoing' facts.) We are of the opinion that the court erred in sustaining the general demurrer to the petition, and in dismissing the case. The petition shows that attorney Field was employed for the purpose of "filing suit, keeping up with its status on the calendar of the court, looking-after hearings upon motions or demurrers, and informing petitioner and his other counsel when they were needed at the trial;” that both petitioner and his other counsel, who resided in a different county from that in which the suit was pending, relied upon Field to keep them informed as to the pleadings, motions, and hearing in the case. When the case was called for trial Field was seriously sick — too sick to give any attention whatever to
We think the case is brought within the rule stated in section 5965 of Park’s Annotated Code, which makes provision for setting aside judgments by a court of equity. In the case of Howell v. Ware, 133 Ga. 674 (66 S. E. 884), it was said: “In this State it has been held that £ a motion to vacate a judgment by default, on the ground that defendant was sick when it was rendered, and could not put in his plea, was properly overruled, no reason being shown why the plea was not filed before the trial term.’ Cannov. Harrold, Johnson & Co., 61 Ga. 158. . . It will be seen that
It follows from what is said above that the court erred in sustaining the demurrer and dismissing the petition.
Judgment reversed.
Rehearing
ON THE MOTION EOR REHEARING.
The opinion as written in this case is modified to the extent of eliminating that part of the opinion as first written which orders the reinstating of the original case, and confines the ruling to a reversal of the judgment dismissing the instant case upon demurrer.