Atl. Coast Line R. Co v. Neves

• Citation: 23 Ga.App. 468,98 S.E. 391
• Decision Date: 20 February 1919
• Docket Number: (No. 9149.)
• Parties: ATLANTIC COAST LINE R. CO. v. NEVES.
• Court: United States Court of Appeals (Georgia)

23 Ga.App. 468

98 S.E. 391

ATLANTIC COAST LINE R. CO.

v.NEVES.

(No. 9149.)

Court of Appeals of Georgia, Division No. 2.

Feb. 20, 1919.

(Syllabus by the Court.)

Error from City Court of Blakely; R. H. Sheffield, Judge.

Action by J. E. Neves, administrator, against the Atlantic Coast Line Railroad Company. Verdict for plaintiff, motion for new trial dismissed, demurrer to motion to reinstate motion for new trial sustained, and defendant brings error. Affirmed.

Pope & Bennet, of Albany, and A. H. Gray, of Blakely, for plaintiff in error.

Glessner & Collins, of Blakely, for defendant in error.

BLOODWORTH, J. This case was before this court at the March term, 1917, on exceptions to a judgment in the city court of Blakely sustaining a demurrer to the petition, which judgment was reversed. See Bryant v. Atlantic Coast Line R. Co., 19 Ga. App. 536, 91 S. E. 1047, where the substance of the petition is set forth. Upon the trial of the main case there was a verdict for the plaintiff for $500. The defendant made a motion for new trial, which was set for hearing on June 18, 1917. On June 16, 1917, John D. Pope, a member of the firm of Pope & Bennet, division counsel for the railroad, received from the court reporter a transcript of the record of the trial of the case. When the motion for new trial was called on June 18th, there was no appearance for movant, and the motion for new trial was dismissed. On the first day of the next term of the city court a motion to reinstate the motion for new trial was filed, in which it was alleged that John D. Pope, of counsel for the railroad, had entire control for the movant of the motion for a new trial; that at the time said motion for new trial was set for a hearing his partner, Bennet, was engaged in the Supreme Court, and that the local counsel, Gray, had then no connection with the case; and alleging further that because of certain reasons, stated in the petition and which need not be repeated here, the said Pope was in great distress of mind and his mental and physical efficiency was impaired, which neither Pope nor his partner realized, and on account of which his client was entitled to a continuance of the hearing of the motion for a new trial.

"By reason of the foregoing facts, and by reason of the great distress of mind under which he was suffering, the said Pope entirely overlooked the fact that said hearing was to be had on said 18th day of June, and therefore overlooked the fact that he should make a showing before the court and ask for a continuance of said hearing until he could complete said brief of evidence."

The petition was demurred to on the grounds: (a) The city court of Blakely was without jurisdiction to set aside the judgment. (b) The motion to reinstate set forth no legal or equitable grounds authorizing the court to set aside the judgment. (c) The attorneys for the railroad were chargeable withlack of diligence in not prosecuting said motion for new trial at the June term of court, and in not then and there pressing their grounds for a continuance of the hearing of the motion. The demurrer was sustained, and petitioner excepted.

Granting that the motion to set aside the judgment dismissing the motion for a new trial was made in time, and that the city court of Blakely had jurisdiction to entertain said motion, we think the demurrer to the motion to reinstate was properly sustained on the second ground thereof, which alleges:

"Said motion to...