Whitlock v. Wilson

13 Citing cases

  1. Burger v. Dobbs

    73 S.E.2d 75 (Ga. Ct. App. 1952)   Cited 13 times

    However, it is a well-settled principle of law that courts of record retain control over their orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate them, and such discretion will not be controlled, unless it is manifestly abused. Methodist Episcopal Church South v. Decell, 60 Ga. App. 843, 849 ( 5 S.E.2d 66); Bowen v. Wyeth, 119 Ga. 687 ( 46 S.E. 823); East Side Lumber c. Co. v. Barfield, 193 Ga. 273, 276 ( 18 S.E.2d, 492); International Agricultural Corp. v. Law, 40 Ga. App. 756 ( 151 S.E. 557); Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474); Dover v. Dover, 205 Ga. 241 ( 53 S.E.2d 492); Tyler v. Eubanks, 207 Ga. 46 ( 60 S.E.2d, 130); Hunter v. Gillespie, 207 Ga. 574 ( 63 S.E.2d 404). But the power to so deal with a judgment is not an unlimited or arbitrary power, but a discretionary one. It is purely a legal discretion. Grogan v. Deraney, 38 Ga. App. 287, 290 ( 143 S.E. 912); Cahoon v. Wills, 179 Ga. 195, 196 ( 175 S.E. 563); Cofer v. Maxwell, 201 Ga. 846, 848 ( 41 S.E.2d 420). As said in the Cahoon case and repeated in the Cofer case: "The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice."

  2. Bagley v. Robertson

    265 Ga. 144 (Ga. 1995)   Cited 25 times
    In Bagley, supra, although the trial court originally adopted the jury's factual findings and entered judgment in accordance with those findings, we upheld the subsequently granted judgment n.o.v., which the trial court entered after observing the advisory nature of the jury's verdict and the lack of evidence to support the jury's finding.

    Hunter v. Gillespie, 207 Ga. 574, 575 ( 63 S.E.2d 404) (1951). See also Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474) (1949); Godby v. Hein, 107 Ga. App. 481, 483 (1) ( 130 S.E.2d 511)(1963); Allstate Ins. Co. v. Clark, 186 Ga. App. 58 (2) ( 366 S.E.2d 394) (1988), overruled on other grounds, Stone v. Dawkins, 192 Ga. App. 126, 127 ( 384 S.E.2d 225) (1989). This inherent power "should not be used `unless some meritorious reason is given therefor.' [Cit.

  3. Bridgestone/Firestone North American Tire, LLC v. Jenkins

    261 Ga. App. 20 (Ga. Ct. App. 2003)   Cited 9 times

    The court was without jurisdiction to vacate the dismissal. Under our law, a judgment not based upon a jury verdict is considered within the breast of the court during the term of court in which it is entered ( Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474) [(1949])), and a court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Conway v. Gower, 208 Ga. 348, 351 ( 66 S.E.2d 740) ([1951]); Holcomb v. Trax, Inc., 138 Ga. App. 105, 106 ( 225 S.E.2d 468) ([1976]). Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60(d).

  4. Jones v. Meyers

    477 S.E.2d 411 (Ga. Ct. App. 1996)   Cited 4 times

    " (Citations omitted). Whitlock v. Wilson, 79 Ga. App. 747, 748 ( 54 S.E.2d 474). See also Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (2) ( 366 S.E.2d 394). The Municipal Court of Columbus, Georgia is a court of record with monthly terms of court which begin on the second Monday of each month. Ga. L. 1983, pp. 4443, 4451, 4452. It follows that the municipal court retained plenary control over the order entered on March 20, 1996, when that order was vacated on March 27, 1996. While defendant Jones had ample opportunity to question this exercise of the municipal court's discretion, nothing in this regard was developed on the record to rebutt the presumption of regularity in the proceedings below.

  5. First Baptist Church v. King

    430 S.E.2d 635 (Ga. Ct. App. 1993)   Cited 5 times

    Held: 1. Under our law, a judgment not based upon a jury verdict is considered within the breast of the court during the term of court in which it is entered ( Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474)), and a court may exercise its discretion for meritorious reasons to set aside a judgment within the same term of court. Conway v. Gower, 208 Ga. 348, 351 ( 66 S.E.2d 740); Holcomb v. Trax, Inc., 138 Ga. App. 105, 106 ( 225 S.E.2d 468). Once that term of court has ended, however, a judgment may only be set aside under the procedures in OCGA § 9-11-60 (d). Crowe v. Crowe, 245 Ga. 719, 720 ( 267 S.E.2d 14); Cryomedics v. Smith, 180 Ga. App. 336, 337 ( 349 S.E.2d 223); Deans v. Kingston Dev. Corp., 159 Ga. App. 721, 722 ( 285 S.E.2d 37). Since summary judgment was entered in favor of the church on March 8, 1991, that term of court ended on May 6, 1991, and King's motion was not filed until May 7, 1991, a motion to set aside the judgment under OCGA § 9-11-60 (d) was required. Under this Code section, "[a] motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake o

  6. Allstate Ins. Co. v. Clark

    186 Ga. App. 58 (Ga. Ct. App. 1988)   Cited 8 times

    [Cits.]" Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474) (1949); Martin v. Gen. Motors Corp., 226 Ga. 860 (1) ( 178 S.E.2d 183) (1970); Hunter v. Gillespie, 207 Ga. 574, 575 ( 63 S.E.2d 404) (1951); see Holcomb v. Trax, Inc., 138 Ga. App. 105 ( 225 S.E.2d 468) (1976). Dealing first with defendant's procedural assertions of error, we find defendant's "discretionary" motion to set aside in this case to be equivalent to a motion for reconsideration.

  7. R. H. Macey Company, Inc. v. Chancey

    157 S.E.2d 758 (Ga. Ct. App. 1967)   Cited 2 times

    1. "It is a well-settled principle of law that courts of record retain control over their orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate them, and such discretion will not be controlled unless it is manifestly abused. Methodist Episcopal Church South v. Decell, 60 Ga. App. 843, 849 ( 5 S.E.2d 66); Bowen v. Wyeth, 119 Ga. 687 ( 46 S.E. 823); East Side Lumber c. Co. v. Barfield, 193 Ga. 273, 276 ( 18 S.E.2d 492); International Agricultural Corp. v. Law, 79 Ga. App. 756 ( 151 S.E. 557); Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474); Dover v. Dover, 205 Ga. 241 ( 53 S.E.2d 492); Tyler v. Eubanks, 207 Ga. 46 ( 60 S.E.2d 130); Hunter v. Gillespie, 207 Ga. 574 ( 63 S.E.2d 404). But the power to so deal with a judgment is not an unlimited or arbitrary power, but a discretionary one. It is purely a legal discretion. Grogan v. Deraney, 38 Ga. App. 287, 290 ( 143 S.E. 912); Cahoon v. Wills, 179 Ga. 195, 196 ( 175 S.E. 563); Cofer v. Maxwell, 201 Ga. 846, 848 ( 41 S.E.2d 420). As said in the Cahoon case and repeated in the Cofer case: `The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice.

  8. Kimsey v. Caudell

    135 S.E.2d 903 (Ga. Ct. App. 1964)   Cited 6 times

    Hall v. First Nat. Bank of Atlanta, 87 Ga. App. 142 ( 73 S.E.2d 252); Hunter v. Gillespie, 207 Ga. 574 ( 63 S.E.2d 404); Cofer v. Maxwell, 201 Ga. 846 ( 41 S.E.2d 420). This relief may be granted by the court, ex mero motu, with or without notice to either party. Tyler v. Eubanks, 207 Ga. 46 ( 60 S.E.2d 130); Shivers v. Shivers, 206 Ga. 552 ( 57 S.E.2d 660); Dover v. Dover, 205 Ga. 241 ( 53 S.E.2d 492); and said authority of the court exists even where the court sits as a jury in making findings of fact. Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474). The general requirement of Art. VI, Sec. XIV, Par. VI of the Constitution of 1945 ( Code Ann. § 2-4906) that a defendant in a civil case must be tried in the county of his residence is applicable to suits against guardians in their representative capacities; and a suit against a guardian must be brought in the county of his residence, Bass v. Wolff Hopp, 88 Ga. 427 ( 14 S.E. 589), Short v. Mathis, 107 Ga. 807 ( 33 S.E. 694), unless such representative is subject to suit in another county within one of the exceptions to the general rule which are embodied in Code Ann. §§ 2-4901 through 2-4905 inclusive.

  9. Godby v. Hein

    130 S.E.2d 511 (Ga. Ct. App. 1963)   Cited 11 times

    " Abe Gellman Co. v. Jaco Pants, Inc., 107 Ga. App. 1 ( 129 S.E.2d 199). "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." Whitlock v. Wilson, 79 Ga. App. 747 ( 54 S.E.2d 474). We are not unmindful of the apparent conflict between Whitlock and Carolina Tree Service, Inc. v. Cartledge, 96 Ga. App. 240 (7) ( 99 S.E.2d 705), but since Whitlock was a case decided by the full court (five judges concurring and one dissenting) and is the older decision, we think that Carolina Tree Service must yield to it.

  10. Chambless v. Oates Plumbing Heating Company, Inc.

    97 Ga. App. 80 (Ga. Ct. App. 1958)   Cited 4 times

    Such discretion will not be controlled unless manifestly abused." Whitlock v. Wilson, 79 Ga. App. 747 (1) ( 54 S.E.2d 474). No abuse of discretion on the part of the trial court is shown in the instant case.