Jones v. Bullard

52 Ga. 145 | Ga. | 1874

McCay, Judge.

Did this case stand alone on the question whether the movants were in laches as to the witness, and their own presence in the court at the calling of the case, we might think Judge Gibson’s judgment refusing the order to set aside, open to objection. Though when a case turns as this does on the conduct of the parties under the eye of the court, and in the management of the case, it ought to be a very strong case to call for the interference of this court. The appeal is to the discretion of the court to save the parties from what is claimed to be an inevitable'accident or providential interference without fault on the part of the movants, and it is almost impossible to get upon paper the real truth of the case as seen by the judge. But under the rule laid down by this court in Beall vs. Marietta Paper Mill Company, 45 Georgia, 28, it is not enough for the movant to show he is not in fault for not being present. He should also show that his defense had merits. It is folly for the court to set aside a judgment, if, when set aside, there is no legal reason why it should not be immediately again rendered.

We see nothing in any of the statements of the defendants themselves, or in their witnesses, to make out a defense to this note. True, the plea does say that the plaintiff had so acted towards the securities as to release them; but the affidavits make out a different case. When the new note was given, one-security was left out — refused to sign the note. There is nothing in any of the affidavits going to show that any of the parties to the new note were misled, or did not know this. Prima facie, as they all signed it, the presumption is, they knew what they were about, and knew that one of the parties to the first note, a security, was not, and did not, become a party to the new note. There is nothing in the,simple fact of his not joining in the renewal that gives any equity to those who did join. They acted with their eyes open; there is no claim of any fraud, mistake, etc., in the procuring of their signatures; and, indeed, nothing in any of the statements made by any of the parties going to show how the fact that} when the new note was given, one of the securities to the first note refused to join in the renewal, discharges those who did sign. Admitting, therefore, that the providential absence of Governor Johnson, the change in the mode of doing business by (he court, and,the other mishaps insisted on, called for the setting aside of thé judgment, though we are not prepared to say they did, yet oui bono? "Why set it aside when, if Governor Johnson had been there, the parties there and the witnesses there, the result would and must have been the same? We say nothing as to the other defenses. They are equally without legal merit, as the grounds they set up have been again and again ruled by this court to be insufficient.

Judgment affirmed.