Cofer v. Maxwell

• Decision Date: 06 February 1947
• Docket Number: 15716.
• Citation: 41 S.E.2d 420,201 Ga. 846
• Parties: COFER et al. v. MAXWELL.
• Court: Georgia Supreme Court

41 S.E.2d 420

201 Ga. 846

COFER et al. v. MAXWELL.

No. 15716.

Supreme Court of Georgia

February 6, 1947

Syllabus by the Court.

1. 'While a motion to set aside a judgment is addressed to the sound discretion of the judge, it should not, although made during the term at which the judgment was rendered, be granted unless some meritorious reason is given therefor.'

2. Under the facts shown by the record, no meritorious ground existed for setting aside the judgment which required an amendment to the petition within a specified time, or else the petition to be considered dismissed, and with which the petitioner failed to comply as required by the law. Accordingly, the action of the judge in setting aside such original judgment, and permitting the filing of an amendment after the expiration of the time specified therein, was an abuse of discretion requiring reversal of the judgment.

In an action by Mrs. W. L. Maxwell against M. P. Cofer and others for injunction against the cutting of timber on homestead property of Cofer, and for other equitable relief, the court on April 15, 1946, granted a restraining order and sustained certain grounds of demurrer to the petition, with the right of the petitioner to amend her petition within five days to meet the said grounds, or else the said petition to be considered dismissed. Because of some uncertainty on the part of the petitioner's counsel as to the meaning of the judgment upon demurrer, there was some correspondence between them and the judge with delay in the delivery of letters by mail. The petitioner filed an amendment within the five days but failed to have it allowed by the court. On April 22 1946, the judge advised the petitioner's counsel that their failure to present the amendment and have it allowed had caused the court to doubt its right to proceed further in the matter, having possibly lost jurisdiction. On April 29 1946, the petitioner filed a petition to vacate the former judgment of April 15, 1946, which provided for five days within which an amendment might be filed, which petition recited certain facts, including the correspondence between the petitioner's counsel and the judge in respect to counsel's failure to have the amendment allowed by the court. The petition to vacate the former judgment was made returnable to the first day of the May term of court, the appearance term of the case as originally filed. During this May term the defendants filed a petition to dismiss the case and sought revocation of the restraining order previously granted and unrevoked. Upon hearing the two motions, the court, on May 10, 1946, passed two orders, one overruling the motion to vacate the previous judgment of April 15, 1946, and the second sustaining the defendants' motion to dismiss the case and revoking the restraining order previously granted, the reason assigned in each order being that the court had lost jurisdiction of the case upon the failure of the petitioner to properly amend her petition. In Maxwell v. Cofer, 201 Ga. 222, 39 S.E.2d 314, it was ruled by this court that the trial judge had erred in holding that he was without jurisdiction to pass upon the merits of the motion to vacate the judgment of April 15, 1946; and it was also held that the petitioner was entitled to a ruling thereon, and that the judge erred in dismissing the petition and revoking the restraining order.

Upon the judgment of reversal by this court being made the judgment of the trial court, the motion of the petitioner to set aside the judgment of April 15, 1946, was renewed and arguments had thereon. Counsel for both sides stipulated that the facts recited in the motion to vacate were true, and further, that Washington, Georgia, the county seat of Wilkes County, was 25 miles distant from Thomson, Georgia, the residence of the judge of the court in which the order of April 15, 1946, was rendered; that regular bus schedules were maintained in both directions between Washington and Thomson about every two hours each day; that there was daily mail service between those points; that telephone service existed between the said points; and that the travel time between them was less than one hour in either direction.

After hearing argument the court reserved its decision and on November 4, 1946, entered judgment sustaining the motion to vacate and set aside the judgment of April 15, 1946, and permitting counsel for the movant to amend the petition for injunction; and the original amendment filed with the clerk of the court on April 16, 1946, was allowed by the court, ordered filed, and was refiled in the office of the clerk on November 6, 1946.

The exception here is to that judgment, the plaintiffs in error contending that it was an abuse of discretion.

W. A. Slaton, of Washington, for plaintiff's in error.

Clement E. Sutton, H. E. Combs and Carroll D. Colley, all of Washington, for defendant in error.

DUCKWORTH, Presiding Justice (after stating the foregoing facts).

It having become the law of the case, under the ruling by this court on its former appearance here, that the movant was under her motion to set aside the judgment of April 15, 1946, entitled to a ruling on the merits of the motion, it remains to be decided only whether or not the...