Howell v. Glover

65 Ga. 466

Opinion

Jackson, Chief Justice.

Howell made a motion, to set aside a judgment rendered against him on several grounds set out in the record. On analyzing these grounds, they will be found to be reduced to but two—first, and mainly, that the judgment was rendered after his adjudication as a bankrupt, and secondly, that he was under the impression that he had notified the judge of said adjudication ánd thought his counsel would attend to the case, and it would be continued until the final result of his application for discharge as a bankrupt.

1. It appears from the record and certificate of the judge, that no plea was filed, nor was there any application to him of any sort to stay the proceedings in this case. Therefore, Steadman vs. Lee, 61 Ga., 58, controls this point.

Nor does it help the plaintiff in error that at the term before in other cases, the judge had seen the certificate of his adjudication. The court must be judicially informed by some sort of application to stay proceedings in the pending case. What the judge knows by what transpired in other cases, or of his own knowledge, the court does not judicially know in a case pending for legal trial before it.

2. Nor is the party relieved by the failure of his counsel. It seems from the record that they had their names stricken on account of some misunderstanding about fees, and when the case was called did not and would not respond, though their attention was called to the matter.

The plaintiff in error did not appear when called, and the court could not well do otherwise than proceed with the case. At all events, we are not at liberty to control the discretion of the judge.

There does not seem to have been any consolidation of the cases. If there was, it is only matter of costs, and the error, if any, can be rectified by the court below on proper proceedings there.

J udgment affirmed.