Opinion
39112.
DECIDED NOVEMBER 13, 1961. REHEARING DENIED NOVEMBER 28, 1961.
Motion to set aside judgment, etc. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Miles B. Sams, for plaintiff in error.
James R. Venable, contra.
The failure of the defendant's counsel to appear in court upon the trial of a suit against the defendant where such absence was not induced by any acts or conduct of the plaintiff or the court, was unmixed with any sort of providential cause, and was without the leave of the court, constitutes no legal reason for setting aside a jury verdict and judgment in such suit.
DECIDED NOVEMBER 13, 1961 — REHEARING DENIED NOVEMBER 28, 1961.
Stamps Tire Co., Inc. filed its suit on a contract in the Civil and Criminal Court of DeKalb County against Alton Powers on October 7, 1960. The defendant filed his answer to the petition and demanded a trial by jury. On March 13, 1961, the case came on for trial, and there being no response for the defendant and no announcement as to his absence, the plaintiff proceeded to present its case to the jury, receiving a verdict in its favor. On March 14, 1961, the defendant's counsel filed the following motion to set aside said verdict and the judgment entered thereon: "Comes, now, the defendant in the above styled case by and through his attorney, James R. Venable, and shows to the court the following facts, to wit:
"That this case is on the calendar for the 13th of March, 1961, for trial, and defendant's counsel, James R. Venable, called the clerk of said court, namely, Mr. Herman Austin, to notify him that he was on trial in the Superior Court of DeKalb County on a rape case, and that it would be impossible for him to be present.
"For some reason, the plaintiff's counsel, Mr. Miles Sams, proceeded to present the matter to the court and jury and took a judgment against defendant without defendant being present, nor defendant's counsel being present, and
"That he brings this motion to vacate and set aside said judgment because of the facts set out, and prays this honorable court to consider said matter, and to vacate and set aside said judgment as heretofore alleged, and
"That he issue a rule nisi upon plaintiff, or his counsel notifying them to show cause why said judgment should not be vacated and set aside."
The trial court sustained said motion on April 20, 1961, and set aside the judgment of the jury. Subsequently, on June 20, 1961, the case came on to trial before the court without a jury, the parties having waived the demand for jury trial, and judgment was rendered for the defendant by an order dated June 20, 1961, whereupon the plaintiff filed his motion for new trial. The judgments under review are the orders of the trial court sustaining the defendant's motion to set aside the verdict and judgment, and denying the plaintiff's motion for a new trial.
"There is a well-recognized rule of law to the effect that courts of record retain full control over their own orders and judgments during the term at which they are entered, and in the exercise of a sound legal discretion may revise or vacate them, as the ends of justice may require, such discretion not being controlled by courts of review unless manifestly and flagrantly abused. But the judgments and orders thus said to remain `in the breast of the court' do not include judgments based upon the verdict of a jury, which do not come within the scope of such plenary powers and discretion. Georgia Railway Co. v. Hamer, 1 Ga. App. 673 ( 58 S.E. 54); Grogan v. Deraney, 38 Ga. App. 287, 290 ( 143 S.E. 912)." Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568, 569 ( 150 S.E. 569). Accordingly, where at the trial term, in the absence of any defense, a judgment against the defendant has been entered, based on a verdict of a jury, the defendant, in order to avoid the judgment, is relegated to his right to attack the judgment by motion to set aside or in arrest of judgment, or by a proceeding in the nature of a motion for a new trial to secure relief against judgments irregularly or improperly obtained. Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568, 570, supra.
Since the judgment in the instant case was based on a verdict of a jury and since it was not sought to be set aside on account of perjury or for any defect not amendable which appears on the face of the record or pleadings, the motion of the defendant must necessarily be construed as seeking to set aside the judgment for irregularities not appearing on the face of the record and must necessarily come within the rules governing motions for a new trial. Mills v. Quick, 99 Ga. App. 461, 465 ( 109 S.E.2d 65). Thus measured, the motion of the defendant sets forth no legal reason for setting aside the verdict and judgment since it clearly appears from the facts alleged therein that the failure of the defendant's counsel to appear and defend the suit was not induced by any acts or conduct of the plaintiff or the court, was unmixed with any sort of providential cause, and was without the leave of the court. Cotton States Life Ins. Co. v. Edwards, 74 Ga. 220, (1), 226; Mills v. Quick, 99 Ga. App. 461, supra. Irrespective of the action that the trial court would have taken had the clerk informed him of his telephone communication from the defendant's counsel, the clerk's failure to inform the court furnished no grounds for setting aside the verdict of the jury in this case. Turner v. Citizens Bank of Valdosta, 31 Ga. App. 549 ( 121 S.E. 698).
The trial court therefore erred in sustaining the defendant's motion to set aside the verdict and judgment of the jury, such error rendering the further proceedings in this case nugatory.
Judgment reversed. Nichols, P.J., and Frankum, J., concur.