120 Ga. 262 | Ga. | 1904
The record in this case is somewhat confused. We gather, however, from the original petition of E. J. Miller, the exhibits attached thereto, and amendments to the same, the following facts. On January 24, 1900, during the November, 1899, adjourned term of the superior court of Brooks county, verdict and judgment were rendered in favor of J. H. McCall against E. J. Miller and the sureties on his bond given to dissolve a garnishment, in the case of J. H. McCall v. A. P. Ashurst, defendant, M. Brice, garnishee, and E. J. Miller, claimant, who had traversed the answer of the garnishee and upon which traverse an issue had been formed, judgment having been previously rendered against the defendant, Ashurst, in the main case. In 1898', during the pendency of the garnishment and claim case, counsel for Miller had been served, at the instance of the plaintiff, with written notice to produce, upon the trial of that case, a certain letter from the plaintiff to Miller, dated August 25, 1895, alleged to contain evidence pertinent to the issue in the case and to be used as evidence in behalf of the plaintiff. Upon the call of the garnishment and claim case on January 23, 1900, during the said November adjourned term, counsel for Miller, in response to the notice to produce such letter, stated to the court that he. had the letter in his possession but was unable to produce it, for the reason that it was then in Moultrie. The court thereupon passed a peremptory order requiring counsel for Miller to produce such letter on the trial, to be used as evidence for the plaintiff. On the next day, January 24, upon tire call of the case for trial, verdict and judgment were
Whatever may be the correct rule as to when equity will grant relief against a judgment at law rendered in the absence of the defendant, by reason of his serious illness (and there seems to be some diversity of judicial opinion on the subject,— 1 Black on Judgments, § 334 et seq.), it appears from the petition in the case under consideration that, even if the petitioner had been present when the verdict and judgment which he seeks to set aside were rendered against him, the result would not have been different. His counsel had been duly notified to produce a certain letter, alleged to contain evidence pertinent to the issue and to be used on the trial in that case as evidence for the plaintiff. It appeared that, when called upon to produce this letter, the counsel representing the petitioner admitted that it was in«his possession, but stated that he was unable to produce it, because it had been carried to Moultrie by his former partner. It does not appear that any request was made that the case be postponed until the letter could be procured, or that any objection wad made to the production of the letter because it was not material evidence, or for any other reason, nor does it appear that any objection was made to the granting of the peremptory order, requiring petitioner’s counsel in that case to produce the letter; nor is there any suggestion in the petition as to what petitioner could or would have done, had he been present, to prevent the granting of the peremptory
Reversed.