Bryant v. Elberton & E. Ry. Co

• Decision Date: 23 July 1917
• Docket Number: (No. 8339.)
• Parties: BRYANT. v. ELBERTON & E. RY. CO. et al.
• Court: Georgia Court of Appeals

20 Ga.App. 586

93 S.E. 219

(20 Ga. App. 586)

BRYANT.

v.ELBERTON & E. RY. CO. et al.

(No. 8339.)

Court of Appeals of Georgia,

Division No. 2.

July 23, 1917.

(Syllabus by the Court.)

Error from City Court of Washington; Wm. Wynne, Judge.

Petition by Z. T. Bryant against the Elberton & Eastern Railway Company and others, to vacate a judgment. There was a judgment denying the petition, and petitioner brings error. Affirmed.

Z. T. Bryant filed a petition in which he prayed that a certain judgment against him in favor of the Elbertoh & Eastern Railway Company be "vacated and set aside" because of the following facts: At the appearance term of the court in which the original case was pending defendant, by his attorneys of record, filed his plea and answer, in which he denied all counts of plaintiff's suit and demanded a trial by jury on the issues involved; that he was not present when said case was called for trial, his attorney having told him that his case would not be tried; that in his absence, and without his consent, his attorneys agreed for a jury to find a verdict against him, and agreed that his case should take the direction of a similar suit pending in said court which it was expected would be carried to a higher court as a test case; that the said agreement as entered into by his attorneys was beyond their authority; that said test case, which it was intended should be carried to a higher court, was "dropped as soon as judgment was rendered in the lower court"; that he had a good and valid defense to said suit, and that as soon as he learned of said judgment and execution against him he took steps to have same set aside. The Elberton & Eastern Railway Company answered, admitting that a verdict was rendered and judgment entered against petitioner as alleged, and alleging that the same was done under a written agreement that the case of petitioner should abide the result of a test case pending in said court; that judgment was rendered against the defendant in the test case, and the defendant in that case "having taken his case to the Court of Appeals of Georgia, for some reason unknown to this defendant, dismissed the same without any request on the part of this defendant, and without any consideration flowing from this defendant, " and that it is proceeding in the instant case under its judgment and by reason of said agreement, which agreement was made by the attorneys of record for petitioner, who, "under the laws of Georgia, in view of the facts, had authority to make said agreement, and cannot now avoid the results to him of the same." The court overruled the motion to set the judgment aside, and the defendant excepted.

Clement E. Sutton, of Washington, Ga., for plaintiff in error.

W. A. Slaton, of Washington, Ga., for defendants in error.

BLOODWORTH, J. (after stating the facts as above). [1] 1. On the trial of this motion to set aside the verdict the plaintiff, C. T. Bryant, testified as follows:

"I employed Messrs. Colley & Colley, of Washington, Ga., to represent me in the case, and they filed an answer for me. I told them I wanted a trial by a jury, and they asked for one in their pleadings. The case hung up in court for some time. I came to court regularly every term, expecting it to be tried. In September, 1915, on First Monday being court day, I had a daughter seriously ill at the point of death. My son and me both had a case in court. I left him at home in charge of my daughter, and to wait on the two physicians there, and came to town to court. I found that court did not open until 10 o'clock a. m., and so about 9.30 a. m. I saw my lawyer, Mr. Colley. I explained to him that I had a daughter at home seriously ill, and to see the judge and get me and my son excused. He advised me to go back home, as I would be certainly excused under the circumstances, and he promised to look out for the case and get it put off. I told him I wanted a trial by jury all the time, and never consented for anything else."

Witness further testified:

"As soon as the Wansley Case (the test case) was settled, the railroad company notified me that they had an execution against me. I immediately went to see my lawyer about it. Mr. Colley was disqualified by his agreement with the railroad company made in September, and I employed Mr. C. E. Sutton, who brought this motion to vacate the judgment. Mr. Sutton obtained leave of absence from Judge Wynne of the city court until this fall, and this accounts for the delay in bringing the motion to vacate the judgment."

In the case of Phillips v. Taber, 83 Ga. 571, 572, 10 S. E. 270, 272, the following rule is laid down:

"In order for a defendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick and unable to attend the court, and unable to give the court notice of his condition, but he must go further and show to the court that he had a meritorious defense to the action, and show by his affidavit, or the affidavits of others, such facts as would render it improbable, or at least doubtful, that the plaintiff would be entitled to recover. It is not enough for him to swear that ho has a meritorious defense to the action, without going further andshowing the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial, because it would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury. Beall v. Marietta Paper Mill Co., 45 Ga. 28; Prvor v.American T. & B. Co., 15 Ga. App. 822(3), 830 ; Philip Carey Co. v. Sheppard, 91 S. E. 444(3); Cheney v. Walton, 46 Ga. 432; Massey v. Allen, 48 Ga. 21; Peacock v. Usry,...