The court did not err in overruling the demurrer to the petition to set aside a judgment, rendered as if the case were in default, filed during the term at which the judgment sought to be set aside was rendered, for the reason that the court erred in dismissing the defendants' answer on the ground that they were not present in court and not represented by counsel, and in thereafter rendering a default judgment as if the case were in default.
Curtis Kimsey sued Olin B. Davis and Myrtie Davis in the Superior Court of Lee County on three promissory notes to recover principal, interest, and attorney's fees. The defendants filed an answer. The action was filed on August 6, 1951. At the May term, 1953, the court passed the following order: "The above and foregoing matter being called for trial in its regular order on the docket, the plaintiff having announced ready for trial, and no one appearing for the defendants, upon motion of the plaintiff's counsel that the answer of the defendants be dismissed for the want of prosecution, the same was dismissed by the undersigned in open court, and whereas, in view of the said dismissal, no issuable defense is to be heard; whereupon, it is considered, ordered and adjudged by the court that the plaintiff, Curtis Kimsey, do have and recover of the defendants, Olin B. Davis and Myrtie Davis, individually and/or jointly, the sum of $482.28 principal, besides interest in the sum of $135.00 to the date of this judgment, together with future interest at the rate of 7% per annum until paid, and the sum of $61.72 attorneys fees, being ten percent of the principal and interest, in accordance with the terms of this note, and the costs of court. This the 4th day of May, 1953. In open court. (Signed) Cleveland Rees, Judge of the Superior Court of Lee County, Georgia."
During the same term the defendants in the above action filed a petition to set aside the above judgment, as follows: "Come now the defendants in the above stated case at and during the May 1953 term of said court wherein the verdict and judgment herein complained of were entered, and file this their motion to vacate and set aside said verdict and judgment, upon the following grounds, to wit: 1. That counsel for the defendants, James W. Smith, of Albany, Georgia, consented to the continuance of said case at the instance of J. M. Forrester, attorney for the plaintiff, at the November 1952 term of said court, under the express agreement between said attorneys that the said case would not be assigned for trial at the next ensuing May 1953 term of said court unless [s]aid assignment was mutually agreeable to these defendants and to their attorney, James W. Smith.
"2. Movants say that, in violation of the terms of this agreement, and without any notice to either of them, the said J. M. Forrester, attorney for the said plaintiff, during the absence of these defendants and their attorney and without any prior notice to them, called up the said case on May 5, 1953, at and during the regular May term of said court, and moved the court that the answer filed by these defendants be stricken, whereupon said answer was stricken and verdict and judgment rendered against these defendants as if the case had been in default.
"3. These defendants say that they have a valid and subsisting defense to the note sued on in this case, and that their said defense was set up in their answer herein which, as aforesaid, was stricken upon motion of the said J. M. Forrester in the absence of these defendants and their attorney of record.
"4. Movants come prior to the adjournment of said court and at and during the term of said court wherein said verdict and judgment were rendered and move the court that said verdict and judgment be set aside and vacated and said cause reinstated upon the calendar of said court, movants asserting their willingness and readiness for trial upon the issues in said case at any time the same may be assigned for trial.
"Wherefore, the defendants pray that said verdict and judgment be vacated and set aside upon the grounds and for the reasons herein alleged."
The plaintiff in the main action, respondent in the motion or petition to set aside, filed a general demurrer thereto, which was overruled. The respondent answered in substance that the attorney for the respondent (the plaintiff in the action on the notes) had notified a member of the firm of attorneys representing the defendants in the action on the note twice prior to the May 1953 term of Lee Superior Court that the case would be tried at said term. After hearing evidence the court set aside the judgment and reinstated the case. Curtis Kimsey here excepts to the overruling of the general demurrer to the petition to set the judgment aside and to the order setting aside the judgment and reinstating the case.
The court did not err in overruling the demurrer to the petition to set aside the judgment or in setting aside the judgment. Whether the judge was authorized to set aside the judgment for another or other reasons, he did have the right and authority at the same term at which the judgment sought to be set aside was rendered to set aside the judgment, for the reason that it was error for the court to dismiss the answer of the defendants on the ground that the defendants were not present or represented at court on the call of the case and to treat the case as being in default and render a judgment without the verdict of a jury. That a defendant is not present in court or not represented by counsel is not a ground for dismissing an answer, whether the answer is good or bad. It does not appear from the record whether there was a demurrer to the answer or not. If there was, it had to be heard and passed on before the trial of the case could continue. If there was not, the plaintiff was required to make out his case before a jury by evidence or admissions of the defendants and have a jury pass upon the case or make a verdict on direction by the court. The demurrer to the petition to set aside was not meritorious on the ground that the defendants did not show that they had a good defense. Their defense was already timely filed and the issues in the case were already made when the answer was stricken and judgment rendered, and the defendants were entitled to have these issues decided by a trial of the main case and not on the petition to set aside the judgment.
The court did not err in overruling the demurrer to the petition to set aside the judgment or in setting aside the judgment and reinstating the case.