Cox v. Yates
| Citation | 96 Ga.App. 466,100 S.E.2d 649 |
| Decision Date | 17 September 1957 |
| Docket Number | No. 2,No. 36823,36823,2 |
| Parties | Kenneth M. COX v. Frances YATES |
| Court | United States Court of Appeals (Georgia) |
Young & Hollis, Columbus, for plaintiff in error.
Richard H. Baker, Paul Blanchard, Columbus, for defendant in error.
Syllabus Opinion by the Court
1. The denial of a stay in proceedings properly applied for under the Soldiers' and Sailors' Civil Relief Act (50 U.S.C.A.Appendix, § 521) is a final judgment from which a writ of error will lie.
2. The discretion which is vested in the trial court to grant or refuse a stay of proceedings on application and showing that the defendant is in the armed forces of the United States engaged in military service in a foreign country is not an absolute discretion, but is a legal discretion to determine, from the facts in evidence, whether the absence of the defendant on the trial of the case will materially affect his ability to defend the action, and, where it appears that such ability will be materially impaired, the stay should be granted. 'A person in the military service is entitled as a matter of law to a stay of a proceeding against him in any case to which that statute is applicable upon his bare application stating that he is at the time in the military service, and where nothing else appears as evidence on the question of impairment of his ability to defend the action.' Gates v. Gates, 197 Ga. 11(2), 28 S.E.2d 108. See also Ulmer v. Mackey, Tex.Civ.App.1951, 242 S.W.2d 679; Luckes v. Luckes, 245 Minn. 141, 71 N.W.2d 850, 54 A.L.R.2d 384; Rauer's Law & Collection Co. v. Higgins, 76 Cal.App.2d 854, 174 P.2d 450; McArthur v. Shaffer, 59 Cal.App.2d 724, 139 P.2d 959; Glick Cleaning & Laundry Co. v. Wade, 206 Ark. 8, 172 S.W.2d 929. In Koons v. Nelson, 113 Colo. 574, 160 P.2d 367, cited by plaintiff in error it was held that no abuse of this discretion existed where the case was tried by the court without a jury and the movant's depositions were in evidence.
3. Generally, parties to civil actions in this State have the right to be present at all stages of the trial. Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514.
4. It appears from this record that the basis of the litigation at issue is an intersection collision, and that liability will turn upon the question, among others, of which vehicle was crossing the street on a green traffic signal, and which vehicle was crossing on a red traffic signal, at the moment of impact; that as to this issue the testimony will be in conflict, and that accordingly the jury may have to choose between the testimony of the defendant, driver of one of the vehicles, and witnesses for the plaintiff, in which event the jury might have to choose between the credibility of the defendant and that of other witnesses, on the basis, among other things, of the appearance and manner of the witnesses in giving their testimony. Under these circumstances it cannot be said, even if the defendant were able to give evidence by deposition which adequately covered his theory of the case, that his absence would not materially affect his ability to defend the case.
5. The collision here occurred on April 6, 1956. The petition was filed in the City Court of Columbus on August 31, 1956 and served upon the nonresident defendant by service upon the Secretary of State of Georgia. The defendant answered on October 2, 1956. The City Court of Columbus has six terms per year beginning on the first Mondays of November, January, March and so on. Ga.L.1952, p. 2175. The case was first set for hearing at the January term, and continuances were granted at the January and March terms. A third application filed April 5, 1957 for a stay was denied on May 29, and the exception is to this judgment. The defendant is a sergeant first class in the regular army of the United States and so far as appears was in the armed forces when the petition was filed. His transfer to duty in Korea was ordered on October 24, 1956 and took place in December of that year. So far as the record shows the defendant neither requested the transfer nor sought a deferment thereof. Plaintiff in error argues that under the decision in Stalcup v. Ruzic, 51 N.M. 377, 185 P.2d 298, cited with approval in Gates v. Gates, supra, the fact that the defendant failed to request a deferment of the overseas assignment shows either a lack of diligence or a desire to evade the trial of the case on his part such as to authorize the court, in its discretion, to refuse a stay, and it is further argued that the defendant, having enlisted in the regular...
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In re Phillips
...entitled to be present.” (Citations and punctuation omitted; emphasis in original.) Id. at 807(6), 505 S.E.2d 731. See also Cox v. Yates, 96 Ga.App. 466, 100 S.E.2d 649 (1957) (generally, parties to civil action have the right to be present at all stages of the trial). Unquestionably the tr......
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...be present at all stages of the trial of the action. Willingham v. Willingham, 192 Ga. 405, 408(1), 15 S.E.2d 514 (1941) ; Cox v. Yates, 96 Ga.App. 466(3), 100 S.E.2d 649 (1957). And, in a civil proceeding this is so in order, inter alia, that the party be able to render assistance to his c......
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...civil actions in this [307 Ga.App. 248] State have the right to be present at all stages of the trial.” (Citation omitted.) Cox v. Yates, 96 Ga.App. 466(3), 100 S.E.2d 649 (1957). Nevertheless, this right is not absolute, as the Supreme Court of Georgia has permitted trial judges, in the ex......
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...of a party to litigation is to be present at the trial and render assistance to his counsel as the developments unfold); Cox v. Yates, 96 Ga.App. 466(3), 100 S.E.2d 649 (1957) (generally, parties to civil actions in this state have the right to be present at all stages of the trial); Boutel......
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