Phillips v. Phillips

53 S.E. 457, 124 Ga. 912, 1906 Ga. LEXIS 658

Opinion

Beck, J.

Plaintiff demurred to defendant’s plea to an action upon a promissory note under seal, on the ground that the plea was not verified. The demurrer was filed, without notice thereof • being given to the defendant, twelve days after the “demurrer docket” had been regularly called by the court. When the case was called for trial the plaintiff’s counsel announced to the court that there was a demurrer in the ease, and the judge set the trial for a certain date. On the trial the defendant sought to verify his plea, by way of amendment, but the court would not allow him so to do, and rendered a judgment in favor of the plaintiff. Meld, that as the judgment was in the breast of the court until the end of the term, it was not error for the court, upon proper motion made during the term at which the judgment was rendered, to vacate the judgment and reinstate the plea. Jordan v. Tarver, 92 Ga. 379; Walton v. Jones, 53 Ga. 91; Shaw v. Watson, 52 Ga. 202.

Judgment affirmed.

All the Justices concur, except Atloinson, J., who did not preside. H. F. Strohecker and Hardeman & Moore, for plaintiff, H. P. Mallary and Steed & Ryals, for defendant.