Berry v. Burghard

• Decision Date: 08 June 1900
• Parties: BERRY. v. BURGHARD et al.
• Court: Georgia Supreme Court

111 Ga. 117

36 S.E. 459

BERRY.

v.BURGHARD et al.

Supreme Court of Georgia.

June 8, 1900.

EQUITY—RELIEF FROM JUDGMENT—LACHES.

Equity will not grant a new trial in a case which has proceeded to judgment in a court of law, when the petition therefor shows that the plaintiff was negligent in making his defense in the court where the judgment was rendered.

(Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Suit by M. O. Berry against August Burg-hard and others. Judgment for defendants, and plaintiff brings error. Affirmed.

B. S. Miller, for plaintiff in error.

Eugene Ray and Charlton E. Battle, for defendants in error.

SIMMONS, C. J. In a justice's court in Muscogee county, Burghard obtained judgment against Jerallie. Execution thereon was levied upon certain personal property in the possession of the defendant. It was claimed by Berry. On the trial of the claim case the property was found subject Berry filed an equitable petition for the purpose of setting aside the judgment finding the property subject and of obtaining a new trial. He alleged that there had been one trial before a jury in the justice's court, resulting in a mistrial; that, after several continuances, the case was finally set for trial before another jury; that his counsel were the Messrs. Miller; that on the day before the trial the member of the firm who had theretofore represented him in the matter informed the magistrate that he would be engaged in another court, and would be unable to represent the claimant, but that his brother would appear in his stead; that on the day of the trial this brother did not appear, the reason being that he was in attendance upon a sick relative, and could neither attend court nor notify the justice that he would be absent. The case went to trial, and the jury found the property subject. By an amendment the claimant set out the facts upon which he based his claim to the property, and alleged that if his counsel had been present, and the evidence brought out, the verdict of the jury would in all probability have been different. The judge refused to allow this amendment, on the ground that there was nothing to amend by. He then sustained a demurrer to the petition, which contained special grounds, and also the objection that there was no equity in the petition. The plaintiff excepted to the refusal to allow his offered amendment and also to the ruling sustaining the demurrer and dismissing the case.

This court will not reverse a judgment because of the refusal to allow an amendment to a petition when it appears that the petition and amendment,...