Carolina Tree Service, Inc. v. Cartledge

• Decision Date: 11 July 1957
• Docket Number: No. 2,No. 36794,36794,2
• Citation: Carolina Tree Service, Inc. v. Cartledge, 96 Ga.App. 240, 99 S.E.2d 705 (Ga. App. 1957)
• Parties: CAROLINA TREE SERVICE, Inc. v. R. E. CARTLEDGE
• Court: Georgia Court of Appeals

Page 705

99 S.E.2d 705

96 Ga.App. 240

CAROLINA TREE SERVICE, Inc. v.R. E. CARTLEDGE.

No. 36794.

Court of Appeals of Georgia, Division No. 2.

July 11, 1957.

Carolina Tree Service, Inc., filed an action against R. E. Cartledge in the Municipal Court of Augusta on November 19, 1956, based on an open account between the parties.On February 20, 1957, the case came on for trial before the judge without a jury.There was no appearance for the defendant, and the court after hearing evidence entered a judgment for the plaintiff in the principal sum of $425.On February 25the defendant filed a motion to set aside the judgment based on the following facts established as true upon a hearing of the motion: that defendant's attorney had cases scheduled in both the Municipal Court and the Superior Court of Richmond County on February 19, and obtained a continuance for that day in the Municipal Court; that the Superior Court case on trial was not completed until February 20, for which reason counsel did not appear when this case was called for trial.An allegation that the defendant was out of the State and did not know of the assignment of the case for trial was unsupported by evidence.Plaintiff filed a general demurrer to the motion to set aside and another pleading designated a motion to overrule the motion to set aside, which set up that defendant's counsel had actual notice that the case would be called for trial on February 20, but this allegation, also, was unsupported by proof.The court overruled plaintiff's demurrer and motion, and entered up judgment granting the motion to set aside the judgment and reinstate the case, to which ruling exception is here taken.

Killebrew, McGahee & Plunkett, Augusta, for plaintiff in error.

Leonard M. Tuggle, Augusta, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1.'When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.'Code, § 110-702.

2.'While, under the Code of this state, a judgment cannot ordinarily be set aside, except for defects appearing upon the face of the record, there are instances in which motions so designated have been granted, where based upon matters not so appearing.Whether such a petition be technically a motion to set aside a judgment, or denominated by other appropriate name under a proper proceeding, by petition with rule nisi or process and service thereon, whenever such a petition is predicated upon matters extraneous to the record, it must ordinarily be filed at the term during which the judgment was rendered, inasmuch as such a petition partakes of the nature of a motion for new trial.'Gillespie v. Farkas, 19 Ga.App. 158(1), 91 S.E. 244.

3.A superior court retains plenary control over judgments entered during the term in which they are entered, and in the exercise of a sound discretion may revoke or vacate them, and such discretion will not be interfered with by the appellate courts unless manifestly abused, and it may be applied in reinstating cases dismissed for lack of prosecution(Harrison v. Tate, 100 Ga. 317, 27 S.E. 179).Burnett v. Johnston, 172 Ga. 237, 157 S.E. 645, reinstating cases dismissed on general demurrer(Bowen v. Wyeth, 119 Ga. 687, 46 S.E. 823) and reinstating cases in default in which final judgment had been rendered.Cooley v. Tybee Beach Co., 99 Ga. 290, 25 S.E. 691;Hunter v. Gillespie, 207 Ga. 574, 63 S.E.2d 404.For good cause shown, a case may even be reinstated after a verdict was rendered but before it is spread on the minutes.Goodrich v. Handy, 91 Ga. 29, 16 S.E. 108.

4.However, where the term of court has expired, the judgment is res judicata and is no longer in the breast of the court and the court has no authority to vacate or set aside such judgment except for defects appearing on the face of the record.American Mutual Liability Ins. Co. v. Satterfield, 88 Ga.App. 395, 76 S.E.2d 730.

5.Under statutory authority (Ga.L.1951, pp. 3345, 3353) the term of court of the Municipal Court of Augusta ends at noon on the fourth Monday of each month, and the next term begins at that time.The motion to set aside the judgment here was filed on February 25, 1957, which was the fourth Monday in February, but whether it was filed before or after noon, and whether to the same or a subsequent term of court, does not appear.While this fact should affirmatively appear from the record in the case, it will be presumed here, in favor of the judgment rendered, that the motion was filed at the same term of court.Strachan & Co. v. Wolfe, 2 Ga.App. 254(3), 58 S.E. 492.

6.A final judgment based on a jury verdict is not within that class of judgments which may be revised or revoked within term time purely within the discretion of the court, but such judgments, where the defect does not appear on the face of the record, cannot be set aside without also setting aside the verdict, and a motion to set aside...