Opinion
15979.
OCTOBER 17, 1947.
Petition for injunction. Before Judge Hendrix. Fulton Superior Court. July 1, 1947.
I. A. Blanch, for plaintiff.
Smith, Kilpatrick, Cody, Rogers McClatchey, Sidney Haskins, for defendants.
The petition, seeking to set aside a default judgment obtained during the illness of the petitioner's attorney and his inability to attend court, alleging that the petitioner had a meritorious defense, but not showing the facts from which the merits of the alleged defense could be judged, or that counsel could not by himself or through others have communicated with the court and sought a postponement of the case, and that the petitioner, who failed to keep up with the progress of the case, was for any sufficient reason prevented from doing so and notifying the court of the illness of counsel, did not set forth a cause of action, and the court erred in overruling the general demurrer.
No. 15979. OCTOBER 17, 1947.
Chester B. King filed, on May 8, 1947, in the Superior Court of Fulton County, Georgia, a petition against I. A. Blanch, Jacobs Pharmacy Company Inc. and Hewitt W. Chambers, as Clerk of the Civil Court of Fulton County, alleging the following: On December 20, 1946, the defendant Blanch filed in the Civil Court of Fulton County suit No. 133, 670 against the petitioner, seeking to recover $175 and court costs. On February 5, 1947, an order was taken making the suit returnable to the March term, for the reason that the defendant had not been served in time for the case to be tried at either the January or the February term of court. On February 8, 1947, the defendant in the said suit was served with a copy of the suit by the deputy sheriff of Fulton County, Georgia; and the petitioner herein, within a day or two thereafter, on either February 10 or February 11, 1947, delivered the said papers to his attorney, H. W. McLarty, and requested him to file immediately a defense for him, which the said attorney promised to do and also promised to attend court and notify the petitioner herein when the case was ready for trial. Shortly thereafter the said attorney, H. W. McLarty, became suddenly and seriously ill, which illness continued until April 6, 1947, on which date the said attorney died. The petitioner has a good and valid defense to the action brought by the said Blanch against him, and he explained his defense to his attorney, who promised and agreed to represent him and to file an answer in the case and notify him in advance of the trial thereof. The petitioner herein relied upon his attorney's ability, and had no knowledge of the fact that no answer had been filed or that his attorney was ill and unable to file an answer. He had no knowledge that the case was in default or that it was on the calendar to be tried until after a default judgment had been entered against him and until after a summons of garnishment was sued out and served upon his employer, the defendant Jacobs Pharmacy Company Inc. The said garnishment was filed by the defendant Blanch herein in the Civil Court of Fulton County on April 22, 1947, being number 133,946, and a summons of garnishment was issued thereon and served upon the petitioner's employer, Jacobs Pharmacy Company Inc. The judgment upon which the garnishment was based was obtained through accident and mistake, and should be set aside by a court of equity. Until the said judgment is set aside the garnishment proceeding will continue, and the petitioner has no adequate remedy at law for the reason that the term in which the judgment was obtained has expired, and for the further reason that there are no defects upon the face of the record on which the petitioner can attack the judgment. While the said garnishment continues the petitioner's earnings will be held up and he will likely lose his present employment and will thus sustain irreparable damage and injury. The said two suits are between the same parties hereto and are based on the same cause of action, and should be consolidated with this action in order that the entire matter may be disposed of expeditiously.
The prayers were: (a) that each of the defendants be required to show cause why the said judgment should not be set aside and the prayers of the petition be granted; (b) the defendant Blanch be enjoined from prosecuting the garnishment proceeding further and from attempting to enforce the said judgment against the petitioner in any manner whatsoever; (c) the defendant Chambers be temporarily restrained and permanently enjoined from marking the said garnishment suit, No. 135,946 in the Civil Court of Fulton County, in default, or from entering up a judgment against the garnishee named therein; (d) the defendant, Jacobs Pharmacy Company Inc., be temporarily restrained and permanently enjoined from withholding any sum whatsoever from the petitioner's salary by reason of the said garnishment proceeding or from filing an answer in the said case; (e) such other and further relief be granted as to the court may seem equitable and just; (f) the judgment of March 4, 1947, be vacated and set aside and declared to be of no force and effect; (g) the garnishment proceeding be dismissed; (h) and process issue.
The defendant, I. A. Blanch, filed a demurrer to the petition on the following grounds: 1. The facts stated do not constitute a cause of action. 2. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, had not taken care to ascertain if an answer had been filed in the case. 3. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, had not communicated with his attorney in regard to the case. 4. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, failed to communicate with his attorney within a reasonable length of time as to whether he needed to sign or verify the answer. 5. The defendant demurs specially on the ground that the petition does not disclose that the said attorney had been unable to notify the court or the petitioner of his illness or that he could not have so notified them by his law clerk or secretary for the purpose of avoiding a default in the said case. 6. The defendant demurs specially on the ground that the petition does not disclose that the said attorney did not have in his employ an attorney at law or law clerk who reasonably could have filed an answer or made application for an extension of time to file an answer. 7. The defendant demurs specially on the ground that the petition does not disclose when the petitioner learned of the death of the said attorney, and that he was not negligent in not immediately looking up the status of the case and filing "said petition thereupon promptly." 8. The defendant demurs specially on the ground that it appears from the petition that the petitioner learned of the judgment on or about April 22, 1947, and filed the petition after the expiration of the said term of court. 9. The defendant demurs specially on the ground that the petition fails to set out all the facts on which the defense is based, so that the court may determine for itself if the defense has merit. 10. The defendant demurs specially on the ground that it appears from the petition that the petitioner is not without adequate remedy at law in the event the judgment was obtained, not by reason of his own neglect, but by breach of the said contract of his attorney.
The court overruled all grounds of the demurrer, and the exception here is to that judgment.
It is well settled that, while a motion to set aside a judgment is addressed to the sound discretion of the court, it should not be granted unless some meritorious reason be given. In Phillips v. Taber, 83 Ga. 565, 571 (4) ( 10 S.E. 270), it was said: "In order for a defendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick and unable to attend the court, and unable to give the court notice of his condition, but he must go further and show to the court that he had a meritorious defense to the action, and show by his affidavit or the affidavits of others such facts as would render it improbable or at least doubtful that the plaintiff would be entitled to recover. It is not enough for him to swear that he has a meritorious defense to the action, without going further and showing the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial; because it would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury." In setting forth reasons why the judgment should be set aside, facts and not merely conclusions should be stated so that the court itself may determine the merits thereof. Purity Ice Works v. Rountree, 104 Ga. 676, 679 ( 30 S.E. 885); Jewell v. Martin, 121 Ga. 325 ( 48 S.E. 929). "Where parties have a case in court, it is their duty to attend and look after their interests. They cannot remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them, especially where, by the exercise of the least diligence, they could have ascertained the time when the case was set for trial." Seifert v. Holt, 82 Ga. 757 (3) ( 9 S.E. 843). They are bound to take notice of the time and place of trial and of when their presence is required. Eady v. Napier, 96 Ga. 736 ( 22 S.E. 684); Ayer v. James, 120 Ga. 578, 581 ( 48 S.E. 154); Lovelace v. Lovelace, 179 Ga. 822, 825 ( 177 S.E. 685); Hurt Building v. Atlanta Trust Co., 181 Ga. 274, 286 ( 182 S.E. 187). Even where the party's failure to follow up his case may be excusable, it is not sufficient to set aside a judgment on account of the illness of counsel unless it appears that, in addition to having been unable to attend court, counsel's condition was such that he could not himself or through others have notified the court and sought a postponement. Sims v. Sims, 135 Ga. 439 (2) ( 69 S.E. 545); Brown v. Verekas, 164 Ga. 733 ( 139 S.E. 344).
It is seen from the above that, in order to set aside a judgment as here, a meritorious defense, shown by distinct facts and not conclusions, must be presented. The petitioner must also show, in case of illness of his counsel, that counsel notified the court of his condition or was, by reason of the severity of his illness, unable to do so himself or through others, and that the petitioner was not negligent in keeping up with the progress of the case. It is not made to appear that the attorney here, between the date of his becoming ill and the rendition of the default judgment on March 4, 1947, could not have notified the court of his condition, or that the petitioner was for any sufficient reason prevented from apprising himself of the progress of the case and seeking a postponement. Nor is it shown that, if these essentials had been met, the petitioner had a good defense which on a hearing would probably produce a verdict in his favor. In these circumstances the petition was not legally sufficient to authorize the court to set aside the judgment, and it was error to overrule the general ground of demurrer that no cause of action was set forth. See especially Glover v. Dimmock, 119 Ga. 696 ( 46 S.E. 824); Ayer v. James, supra. The case is quite unlike Howell v. Ware, 133 Ga. 674 ( 66 S.E. 884), and Robinson v. Carmichael, 134 Ga. 654 ( 68 S.E. 582), cited and strongly relied upon by the defendants in error in their briefs. In the Howell case it was alleged that the petitioner had a good defense and it was shown by distinct facts. Immediately upon having been employed, the petitioner's counsel suffered an illness which completely incapacitated him from attending to any of his professional duties. The petitioner was ignorant of all this, his business keeping him out of the city and the jurisdiction of the court a great part of the time. He was absent when the default judgment was entered, and did not know of the facts until his return and he had no opportunity of knowing. In the Robinson case, the defendant employed counsel, who filed a meritorious defense but was taken ill with nervous prostration and did not attend the trial. He had agreed to notify the client when there was anything for him to do with reference to the case. The attorney did not have any partner or associate. It was the custom in the City Court of Atlanta, where the judgment was entered, to have a "bar call" on Friday of every week. Attorneys representing clients in cases likely to be called and assigned for trial the following week were, under the existing custom, supposed to be present, but the parties were not. At the "bar call" at which the attorney, because of illness, was not present the case was placed on the trial calendar for October 18, 1909, and on October 25, 1909, a judgment was entered in the absence of the defendant and his counsel. It was not until after the adjournment of court that the defendant knew that the case had been put on the trial calendar and that a judgment had been entered against him.
The grounds of the demurrer other than ground 1, though denominated "special" grounds, are in fact general. Grounds 2 to 4, inclusive, should have been sustained and not overruled. Ground 5 should have been sustained, on the objection that the petition does not disclose that the attorney had been unable to notify the court or the petitioner of his illness, but not for the alleged reason that the petition does not disclose that the attorney could have notified them by his law clerk or secretary. It is not alleged in the petition that the attorney had a law clerk or secretary, and it will not be presumed that he had. Grounds 6, 7, 8, and 10 were properly overruled. Ground 9 should have been sustained.
Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.