Ellard v. Simpson

142 S.E. 855, 166 Ga. 278, 1928 Ga. LEXIS 289

• Court: Supreme Court of Georgia
• Decided: April 16, 1928
• Docket: No. 6426
• Status: Published

Opinion

Hines, J.

1. The court did not err in overruling the motion of the defendant to dismiss the motion for new trial, upon the ground that a motion to set aside the verdict and judgment was the proper remedy. Any motion to set aside a verdict, based on matters not appearing on the face of the record, is in effect a motion for new trial, and is subject to all the rules governing such motions. Lucas v. Lucas, 30 Ga. 191, 206 (76 Am. D. 642); Hyfield v. Sims, 87 Ga. 280 (13 S. E. 554); McCrary v. Gano, 115 Ga. 295, 296 (41 S. E. 580).

2. Where a plaintiff fails to appear and prosecute his case, and thus follow up and continue to prosecute it, such failure operates as a discontinuance of the plaintiff’s action, and the remedy of the defendant is to ■move fér an order for it to be discontinued or dismissed for want of prosecution. Kahn v. Herman, 3 Ga. 266, 272; Rountree v. Key, 71 Ga. 214. So where a case was called for trial, and the plaintiff did not appear, it was the right of the defendant to move to dismiss the ease for want of prosecution, but not to proceed to trial and obtain a verdict in his own favor, there being no plea or other defense in the nature of a cross-action against the plaintiff. Bateman v. Smith Gin Co., 98 Ga. 219 (25 S. E. 422).

3. Applying the principle last announced, the trial judge did not err in setting aside the verdict and judgment rendered in favor of the defendant in this case; and this reiiders it unnecessary to deal with any of the other assignments of error.

Judgment affirmed.

All the Justices eonem-. Sam Kimzey, for plaintiffs in error. McMillan & Erwin and Bond & Mcülure, contra.