A question presented here is whether the discretion of the judge extended beyond the May term during which the motion to vacate the judgment was filed, and if so, whether that discretion ended with the signing of the order overruling the motion during the July term. We conclude that since the motion was not disposed of during the May term the jurisdiction of the court over the matter continued until final disposition was made, and further that since the order of July 5, 1962, was made during the July term of court it might, for sufficient cause, be set aside at any time until the end of that
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term. “Until the end of the term at which rendered, judgments are ‘in the breast of the court,’ and may be set aside or modified at the judge’s discretion.”
Abe Gellman & Co. v. Jaco Pants, Inc.,
The July term of court, at which the order overruling the motion to vacate was entered had not expired when the further order (pursuant to notice and hearing) vacating it and sustaining the motion was entered on August 2. Thus the action was within the plenary power and jurisdiction of the court.
However, the discretion which the judge is empowered to exercise is a legal one and must be exercised within the standards of
Athens Leather Mfg. Co. v. Myers & Co.,
In support of his motion to vacate defendant presented affidavit from his counsel that “due to some oversight, inadvertence, or mistake ... he did not ascertain the date of said trial, that he was ready, now stands ready and fully believes that the defendant has a good and legal defense,” and one from his counsel’s secretary that “she used ordinary care in checking the
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Fulton Daily Report Calendar and that she did not ascertain or see the said case listed in said calender, and that she did not ascertain the trial date of said case and did not notify the defense counsel that said case was on for trial . . . and that due to some mistake, inadvertence, or oversight, she did not ascertain the trial of said case.” This showing was not sufficient to authorize a vacating of the judgment. “The law rewards diligence, but is slow to harken to the prayer of the slothful. The vigilant man does not need to make excuses, but where one has sat idly by and overslept his rights and permitted a judgment to' be taken against him, which he might have prevented by the exercise of the slightest diligence, the law is not disposed to grant him relief.
Heitmann v. Commercial Bank,
There is no room for the exercise of any legal discretion in setting aside a judgment merely because counsel has, due to some oversight, inadvertence or mistake, failed to appear on behalf of his client, nor can it be aided by a showing that his secretary failed to ascertain, from an examination of the published calendar, that it was scheduled for trial and notify him. “It is likewise a well-established rule that counsel and the parties to a cause must keep themselves informed as to the progress of their case and no excuse will avail them if they permit a right to lapse or a judgment to go by default through their simple negligent failure to apprise themselves of the court’s actions in connection with their cases. . .”
American Mut. Liab. Ins. Co. v. Satterfield,
Thus it follows that there was an abuse of discretion here in the vacating of the judgment.
Judgment reversed.