209 Ga. 571 | Ga. | 1953
Tliis proceeding seeks to set aside a verdict and judgment, on the ground that when same was rendered, the plaintiff in error herein, who was then the defendant, was sick and unable to attend court. It is further alleged that counsel who was employed to repre
This court has repeatedly held that, when a suit in equity seeks to set aside a judgment on account of the illness of the defendant in the case in which the judgment is rendered, it must appear not only that the party was sick, but that he was also unable to notify the court of his condition. See Sims v. Sims, 135 Ga. 439 (69 S. E. 545); McCall v. Miller, 120 Ga. 262 (47 S. E. 920); Blanch v. King, 202 Ga. 779 (44 S. E. 2d, 779); and Odom v. Odom, 209 Ga. 451 (74 S. E. 2d, 1). In the instant case, the petition affirmatively shows that the plaintiff in error made repeated trips to the courthouse during the pendency of the suit, but does not show that he at any time by letter or otherwise attempted to notify the court of his condition. It further appears that copies of the stipulations for the hearing in the case, both on the demurrer and when the case was assigned for trial, were filed as a part of the record in the case and could, of course, have been discovered by an examination of the file in the clerk’s office. It follows, the petition was fatally defective and was properly dismissed on general demurrer.
Judgment affirmed.