Hood v. Duren

117 S.E. 260, 30 Ga. App. 144, 1923 Ga. App. LEXIS 318

• Court: Court of Appeals of Georgia
• Decided: April 11, 1923
• Docket: 14096
• Status: Published

Opinion

Bloodworti-i, ' J.

Charlie Duren filed a motion to set aside a judgment against him in favor of \Y. H. Hood, and alleged that suit was filed by Hood against him in the city court of Thomas-ville on May 27, 1922; that on June 21 he filed in said court an answer which “ set up a good defense to the note sued upon (here is set out in the motion the substance of the plea); that the judge of said court “prepared a calendar of the business of said court, and in said calendar provided that the call of the civil appearance docket for the June term of said court should be held on Saturday, June 24th, at 9 a. m., and that the hearing of demurrers to pleadings in civil cases returnable to the June term of court should be held on Monday, July 3d, at 10 a. m.;” that on June 24th, through an agent, he made inquiry at the office of the clerk of the court to ascertain if any demurrer or motion to dismiss his answer had been filed, and his agent was informed by the clerk that no motion to strike, nor any demurrer to, the answer had been filed; that on July 1, 1922, plaintiff’s attorney filed a demurrer to defendant’s answer, which was heard on July 6, without any notice whatever being given to movant or his attorney, at which time the court passed an order sustaining the demurrer and striking all of defendant’s answer “ except only the 3d paragraph thereof denying service of notice for attorney’s fees;” that thereafter counsel for plaintiff amended his. petition and struck therefrom the paragraph relating to attorney’s fees, and a judgment was then awarded by the judge, acting without the intervention of a jury, against the defendant for the amount of the principal sued for, with interest thereon. Movant further alleges that neither he nor his counsel had any knowledge that a demurrer had been filed to the answer of the defendant in said ease, or that the court had heard the demurrer and sustained the same, or that any action whatever had been taken in connection with the case until the convening of the court at the September term, 1922, at which time he filed his motion to set aside the judgment. The plaintiff demurred to the motion to set aside the judgment, the demurrer was overruled, and thereafter the judge signed an order as follows: “ The within and foregoing motion to vacate and set aside the judgment sustaining the demurrer to defendant’s answer, and the judgment in favor of the plaintiff W. H. Hood against Charlie'Duren at the June term, 1922, city court of Thomasville, being heard and considered, it is ordered and adjudged that said motion be and the same is hereby granted, and said judgments are hereby set aside and vacated, and said case reinstated for trial at the next term of the court, with judgment against plaintiff W. H. Hood for costs herein.”

The court neither erred in overruling the demurrer filed by plaintiff to the motion to set aside the judgment, nor in thereafter vacating and setting aside the judgment in favor of the plaintiff and which was rendered at the June term of said court.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.