Whitlock v. Wilson, 54 S.E.2d 474

Whitlock v. Wilson

54 S.E.2d 474 | Ga. Ct. App. | 1949

Lead Opinion

Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. Such discretion will not be controlled unless manifestly abused. Bowen v. Wyeth, 119 Ga. 687 (46 S.E. 823); Tate v. Little, 141 Ga. 799 (82 S.E. 129); Gaines v. Gaines, 169 Ga. 432 (150 S.E. 645). During the term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. Athens Apartment Corp. v. Hill, 156 Ga. 437, 443 (119 S.E. 631). The superior court, as a general rule, has plenary *748 power over its orders and judgments during the term at which they were rendered, and may amend, correct, or revoke them for the purpose of promoting justice. Gobles v. Hayes, 194 Ga. 297, 300 (21 S.E.2d 624). A motion to set aside and vacate a judgment cannot be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review unless abused. Deen v. Baxley State Bank, 192 Ga. 300, 303 (15 S.E.2d 194). The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts. East Side Lumber c. Co. v. Barfield, 193 Ga. 273, 277 (18 S.E.2d 492). See also Allison v. Garber, 50 Ga. App. 333 (178 S.E. 158); M. E. Church South v. Decell, 60 Ga. App. 843, 849 (5 S.E.2d 66); Berkeley v. State, 74 Ga. App. 711 (41 S.E.2d 265), and cits.

Under the rulings in the foregoing cases we cannot say that the court abused its discretion and erred in overruling the motion to dismiss, and in entering an order setting aside and vacating the judgment.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).

Judgment affirmed. Sutton, C. J., MacIntyre, P. J., Gardner and Townsend, JJ., concur. Felton, J., dissents.

DECIDED JULY 2, 1949. REHEARING DENIED JULY 27, 1949. Mrs. Ruth F. Whitlock sued James C. Wilson for damages growing out of an alleged automobile collision. The defendant filed an answer, in which he denied the allegations of the petition. Upon the trial of the case, in the absence of the defendant and his counsel, and after hearing evidence, the judge sitting without a jury rendered a judgment for the plaintiff in the amount sued for. During the same term of the court the defendant filed a motion to vacate and set aside the judgment on the grounds: "2. That the wife of petitioner's attorney was sick and has continued to be sick, thereby causing said attorney to be unable to attend to his duties to his clients. 3. That petitioner has a good and meritorious defense to the allegations against him in said suit. 4. That petitioner has paid all costs of said proceedings." The plaintiff filed a motion to dismiss the petition to vacate and set aside the judgment, in the nature of a general demurrer, and also an answer. The court overruled the motion to dismiss, and tried the issues made by the petition to vacate and the answer thereto upon evidence consisting of the verified pleadings and facts stated in his place by counsel for the defendant as follows:

"That on January 12, 1949, a default judgment was taken against petitioner by Mrs. Ruth F. Whitlock; that the wife of petitioner's attorney was sick at the time of the trial, had been sick for some time prior to the trial, and has continued to be sick, and is to undergo a surgical operation for her illness on January 28, 1949, thereby causing said attorney to be unable to attend to his duties to his clients; that petitioner's attorney had endeavored to teach his secretary to read the Fulton County Daily Report, but that his secretary was incompetent and was unable to read the Daily Report intelligently and did not read the notice of said case in the Daily Report or did not inform petitioner's attorney, or the associates of petitioner's attorney who were attending to the law practice of petitioner's attorney during his absence from his office because of the illness of his wife, of said notice, as said secretary had previously been explicitly instructed to do; that due to the incompetence of his secretary in reading the Daily Report, or to said secretary's failure to carry out the instructions of petitioner's attorney, and due to the illness of his wife which prevented him from attending *750 to the affairs of his clients, petitioner's counsel received no notice that the case had been placed upon the calendar and received no notice of the time at which the case was to be tried; that, as a consequence of not knowing that the case was set for trial on January 12, 1949, petitioner's attorney did not notify his client that the same was set for trial and did not himself appear at the trial; that this was the first time that petitioner's counsel had failed to appear at a trial; and was the first time that he had had a judgment taken against him in his absence from court at a trial; and that petitioner has a good and meritorious defense to the allegations against him in said suit."

Thereupon the court granted the motion of the defendant and ordered the judgment to be vacated and set aside and the case placed upon the calendar for trial on its merits. To these rulings the plaintiff excepted.

Dissenting Opinion

1. I think that the judgment of a court sitting as a court and jury stands on the same footing as a case actually decided by a jury. In such a case the judge's judgment is both a verdict and a judgment. If this conclusion is correct, the judge has no more control over such judgments during the term rendered than he does over judgments based on jury verdicts. As I understand the law, it requires a motion for a new trial to set aside a verdict for defects not appearing on the face of the record, or a direct exception where trial is by a court as court and jury. In the headnote of Carter v. State, 56 Ga. 463, the court stated that, where a question of fact is submitted to a judge for trial without the intervention of a jury, his decision is as binding as a verdict, and that the verdict will be set aside only under the same rules as apply to the vacating of the finding of a jury. Both this court and the Supreme Court have consistently held that a motion to set aside a judgment based on a verdict cannot properly be predicated on any fact not appearing of record. I cite just one of many cases: Lucas v. Lucas, 179 Ga. 821 (177 S.E.2d 684).

2. Assuming that the proper procedure was followed, the showing made to set aside the judgment was insufficient in law. No reason is shown why counsel or client could not have notified the court of the illness of counsel's wife. The discretion in such cases is not an arbitrary but a legal one. The Supreme Court has very definitely held that such a showing as is here made is not sufficient. Phillips v. Taber, 83 Ga. 565 (10 S.E. 270); Brown v. Verekas, 164 Ga. 733 (139 S.E. 344); Blanch v. King, 202 Ga. 779 (44 S.E.2d 779).