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BURGER v. DOBBS.
34188.
Trover; from Fulton Civil Court-- Judge Hathcock. June 15, 1952.
SUTTON, C. J.
Treating the motion as one to vacate and set aside the judgment filed at the same term of court when rendered, it was addressed to the sound legal discretion of the court, and no legal reason being shown by the motion for setting the judgment aside, the judgment of the trial judge sustaining the plaintiff's demurrer to the defendant's motion was not an abuse of his discretion and will not here be disturbed.
James F. Dobbs filed a bail-trover action against Allen Burger, on April 17, 1952, in the Civil Court of Fulton County, for a 1947 Chrysler sedan automobile, motor number 99807, and alleged that the defendant was in possession of the automobile and that the plaintiff claimed title thereto and the right of possession thereof. It was alleged that the value of the automobile was $1200, and the plaintiff claimed $5 per day for hire or $180 as hire up to the filing date of the trover suit, and alleged that the defendant failed and refused to deliver said automobile to the plaintiff. It appears that the defendant was served personally, on April 19, 1952, with a copy of the trover suit and process which required the defendant to answer on the first Monday in May, 1952, and he was also arrested under said bail-trover proceeding on said date. A judgment was rendered in favor of the plaintiff against the defendant and his surety for $925 on May 20, 1952, it being recited in the judgment that the case came on regularly to be heard before the Chief Judge of said court without a jury; that no defense was interposed; that the plaintiff elected to take a money verdict; that it appeared from the evidence that the plaintiff was entitled to recover; that the defendant was entitled to a credit of $350, and that judgment was rendered in favor of the plaintiff for $925, as above stated.
On May 31, 1952, the defendant, Burger, filed a "Motion to open default and vacate judgment," in which he alleged substantially: (1) that he had paid the accrued costs in said case; (2) that the plaintiff had secured a default judgment against movant for $925; (3) that at the time he was arrested under the bail-trover proceeding he was given no notice of the date such proceeding would be heard; (4) that he was not given papers or process by the marshal indicating the date said case would be heard; (5) that he was advised by the marshal that he would be notified of the time when said case would be heard, and relying thereupon the movant did not file any pleadings or answer, notwithstanding the fact that he has a meritorious defense; (6) that movant was ready and offered to plead instanter and was ready to proceed with the trial; (7) that, on March 11, 1952, Dobbs executed and delivered to movant a bill of sale to said Chrysler automobile, upon the delivery of a check for $350, a copy of the bill of sale being attached as Exhibit A; (8) and on the same date he executed and transferred the registration slip of the automobile to movant, a copy thereof being attached as Exhibit B; (9) that the value of said automobile was not in excess of $600, and the judgment rendered against the movant is excessive; (10) and that, at the time the trover proceeding was filed against movant, he had sold said automobile for $600 and it was not in his possession on the date he was served in April, 1952.
The copy of the bill of sale attached to the motion as Exhibit A showed that it was made to "Atlanta Motor," and the copy of the registration slip attached as Exhibit B showed that it was transferred in blank by James F. Dobbs.
The plaintiff demurred to the defendant's motion to open default and vacate judgment on the following grounds: (1) The facts stated in the motion fail to set forth any cause of action for the relief sought. (2) The motion shows on its face that the defendant was arrested under a bail-trover proceeding, and no legal reason is set forth as to why no answer or defensive pleadings were filed. (3) The motion fails to set out the facts which are relied on as constituting a meritorious defense and fails to show sufficient facts to authorize the court to determine whether or not the alleged defense is meritorious. (4) Although it is alleged in said motion that the plaintiff executed and delivered to the defendant a bill of sale to the property referred to in the trover action, it is not shown how this fact would constitute a good defense to said trover action. (5) The allegations of the motion fail to set forth any legal ground for the setting aside of said judgment and the opening of said default, the judgment showing on its face that it was based on evidence introduced on the trial of the case. (6) It is not shown why the defendant relied on the alleged statement of the marshal with reference to notification as to the date of the trial. (7) The motion shows on its face that the defendant failed to exercise diligence in determining what action it would be necessary for him to take to defend said suit and in taking such action. (8) The motion, being based upon matters not appearing upon the face of the record, is in effect a motion for a new trial and should be dismissed because no brief of evidence taken on the trial of the case is appended thereto or submitted to the court as a part of said motion.
The court sustained the plaintiff's demurrer to the motion to open default and vacate the judgment, and the defendant excepted to that judgment.
(After stating the foregoing facts.) The plaintiff in error says in his brief that his "Motion to open default and vacate judgment" was brought under Code 110-404. This section, as amended by the act of 1946 (Ga. L. 1946, pp. 761, 778), is headed, "Opening default before final judgment," and is as follows: "At any time before final judgment, the judge, in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial."
This Code section is not applicable to the present case, as a final judgment was rendered before the motion was filed. It appears from the judgment that the case came on regularly to be heard, that no defense was interposed, that, from the evidence, the plaintiff was entitled to recover, and that the judgment was accordingly entered on May 20, 1952. The plaintiff in error's motion to open default and vacate judgment was filed on May 31, 1952. See Guthrie v. Spence, 55 Ga. App. 669 (191 S. E. 188).
However, it is a well-settled principle of law that courts of record retain control over their orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate them, and such discretion will not be controlled, unless it is manifestly abused. Methodist Episcopal Church South v. Decell, 60 Ga. App. 843, 849 (5 S. E. 2d, 66); Bowen v. Wyeth, 119 Ga. 687 (46 S. E. 823); East Side Lumber &c. Co. v. Barfield, 193 Ga. 273, 276 (18 S. E. 2d, 492); International Agricultural Corp. v. Law, 40 Ga. App. 756 (151 S. E. 557); Whitlock v. Wilson, 79 Ga. App. 747 (54 S. E. 2d, 474); Dover v. Dover, 205 Ga. 241 (53 S. E. 2d, 492); Tyler v. Eubanks, 207 Ga. 46 (60 S. E. 2d, 130); Hunter v. Gillespie, 207 Ga. 574 (63 S. E. 2d, 404). But the power to so deal with a judgment is not an unlimited or arbitrary power, but a discretionary one. It is purely a legal discretion. Grogan v. Deraney, 38 Ga. App. 287, 290 (143 S. E. 912); Cahoon v. Wills, 179 Ga. 195, 196 (175 S. E. 563); Cofer v. Maxwell, 201 Ga. 846, 848 (41 S. E. 2d, 420). As said in the Cahoon case and repeated in the Cofer case: "The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice."
It appears from the record that the defendant was served personally with a copy of the bail-trover suit and process, which required him to answer on the first Monday in May, 1952, and he was also arrested under said proceeding. He failed to interpose any defense and later the case came on regularly to be heard and the judgment in question was rendered against him. The defendant in the motion to vacate does not traverse the service or deny that he was served, but only alleges that he was not given any notice or papers indicating the date when the case would be heard, and says that he was advised by the marshal that he would be notified of the time when the case would be heard.
The return of service by the officer imports verity, and, when not traversed, any question as to whether the defendant was legally served may be disregarded. Williams v. Atlanta National Bank, 31 Ga. App. 212, 219 (120 S. E. 658), and citations. Also, see Winn v. Armour & Co., 184 Ga. 769, 772 (2) (193 S. E. 447), as to necessity of traversing entry of service by the officer, in order to vacate a judgment on the question of service. When the defendant was duly served, the legal responsibility was on him to keep up with the case, at every stage, if he desired to defend and contest it. According to the record, he was afforded full opportunity to defend, but he failed to appear and plead.
Treating the motion as one to vacate and set aside the judgment filed at the same term of court when rendered, it was addressed to the sound legal discretion of the court, and no legal reason being shown by the motion as to why the judgment should be set aside, the judgment of the trial judge sustaining the plaintiff's demurrer to the defendant's motion was not an abuse of his discretion and will not here be disturbed.
FELTON, J., concurring specially. A judgment rendered by a judge acting as judge and jury stands upon the same footing as a judgment based on a jury verdict, and such a judgment is not in the breast of the court during the term at which it is rendered. Where a judge renders such a judgment against a defendant, the defendant's only remedies are a direct exception or a motion for a new trial. In this case there was no direct exception and the motion filed was defective as a motion for a new trial because there was no brief of the evidence. See dissent in Whitlock v. Wilson, 79 Ga. App. 747 (54 S. E. 2d, 474). It seems to me that the many decisions holding that the remedy of a losing party in a case where a judge renders a judgment acting as judge and jury is either a motion for a new trial or a direct exception necessarily negative the idea that an available remedy is a motion to have the judgment set aside as one being in the breast of the court during the term. Some of these cases are: Hyfield v. Sims & Co., 87 Ga. 280 (13 S. E. 554); Crumbley v. Brook, 135 Ga. 723 (70 S. E. 655); Goldsmith-Leslie Co. v. Whitehead, 41 Ga. App. 287 (152 S. E. 589); Ellard v. Simpson, 166 Ga. 278 (142 S. E. 855).
Howard, Miller & Howard, Lewis R. Slaton Jr., contra.
Harold Karp, Ferrin Mathews, for plaintiff in error.
DECIDED SEPTEMBER 26, 1952 -- REHEARING DENIED OCTOBER 17, 1952.
Saturday May 23 04:37 EDT


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