Deen v. Baxley State Bank

• Decision Date: 22 May 1941
• Docket Number: 13704,13735.
• Parties: DEEN v. BAXLEY STATE BANK. BAXLEY STATE BANK v. DEEN.
• Court: Georgia Supreme Court

15 S.E.2d 194

192 Ga. 300

DEEN v. BAXLEY STATE BANK.

BAXLEY STATE BANK v. DEEN.

Nos. 13704, 13735.

Supreme Court of Georgia

May 22, 1941

Syllabus by the Court.

1. The superior court has power, during the same term at which an order or judgment is rendered, to revoke or vacate it for meritorious cause.

(a) Such power is not lost during the term merely because the time for excepting to the judgment directly by writ of error has expired.

(b) Where an order sustaining a general demurrer to a petition is rendered during the period of a regular term of the superior court, though actually passed at chambers or in vacation, the judge acting in open court during the same term may, on due application, and after notice and hearing, vacate or revoke it for sufficient cause, as though it were itself a term order.

(c) In view of the testimony as to illness of the plaintiff's counsel, and other evidence, it cannot be said that the judge abused his discretion in setting aside the judgment sustaining a general demurrer and dismissing the plaintiff's action, rendered during the illness of such attorney, after the case had been taken under advisement by the judge.

2. The petition of a married woman for injunction to restrain exercise of a power of sale contained in a security deed, and for cancellation of such deed, on the ground that it was made by her to secure a debt owed the defendant by her husband stated a cause of action.

(a) Under the allegations, the principle that he who would have equity must do equity was not applicable.

(b) The petition shows, not that the plaintiff purchased the land subject to a debt or encumbrance which she assumed as part of the purchase-money, but that the deed was taken by the defendant bank as security for a debt of the plaintiff's husband.

(c) The allegations as to fraud were immaterial, nor does any reason appear for applying the principle of estoppel.

(d) After setting aside the former order sustaining the general demurrer and dismissing the action, the court erred in again sustaining the demurrer, since the petition stated a cause of action, and the demurrer should have been overruled.

Oliver & Oliver and Fred B. Davis, all of Savannah, for plaintiff in error.

M E. Wood and J. B. Moore, both of Baxley, and Dave M. Parker of Waycross, for defendant in error.

BELL Justice.

Mrs. Edith Miles Deen filed a suit against Baxley State Bank, seeking injunction to restrain the defendant, its agents and officers, from further proceeding with an advertisement and proposed sale of land in pursuance of a power of sale contained in a security deed, and praying for cancellation and general relief. The petition was amended four times, one of the amendments striking a previous amendment. The judge sustained a general demurrer to the petition as amended, and later vacated the order on application of the plaintiff, after notice and hearing thereon. Afterwards, but on the same day, he passed another order, again sustaining the general demurrer and dismissing the action. The plaintiff sued out a bill of exceptions complaining of the latter judgment. The defendant brought a cross-bill of exceptions, assigning error on the order or judgment setting aside the original order.

1. We deal first with the cross-bill of exceptions. The original order sustaining the general demurrer was dated November 26, 1940, and appeared to have been entered 'at chambers, Hazlehurst, Ga.' The petition to vacate it was filed on January 25, 1941, and contained the following allegations: On October 15, 1940, plaintiff's counsel, Honorable Wade H. Watson, submitted to the judge two amendments to her original petition. On November 24, 1940, Mr. Watson 'was taken suddenly ill, and since said date has been totally unable to attend to his practice or represent his clients.' At the time the judge entered the order of November 26, dismissing the action, he was unaware of the illness of Mr. Watson. The plaintiff did not learn of such order until some time in the following January, when she 'saw' in a newspaper that the property was again being advertised for sale. She immediately procured additional counsel, since Mr. Watson 'could no longer represent her.' The petition to vacate further alleged that the original petition and 'said two amendments' had been lost, and prayed for rule nisi calling on the defendant to show cause why copies should not be established in lieu of the lost originals, and 'why the order of the court, dated November 26, 1940, on the general demurrer should not be vacated and set aside, and a new order entered on said demurrer dated as of the date of the hearing hereon.' The defendant demurred generally and specially to the petition to set aside the judgment, and filed an answer. On January 29, 1941, after hearing evidence pro and con, and considering the demurrers, the judge passed an order setting aside the former order. It appears that although he considered the demurrers he did not expressly rule thereon, and there is no assignment of error on his failure to do so. The defendant in its cross-bill of exceptions makes the following contentions: That under the pleadings and the evidence the judge abused his discretion; that he had lost jurisdiction, for the reason that the original order was entered in vacation, and more than thirty days, the period for excepting thereto, had expired before the petition to vacate it was filed; and finally, that while the order vacating or setting aside the former judgment was a term order passed during the October term, 1940, the rule as to the power of the court to set aside a judgment rendered at the same term would not apply, as here, to a previous vacation order.

The evidence supported the allegations as to the illness of the plaintiff's attorney, the judge's unawareness of it, and the plaintiff's ignorance of the order dismissing her case until some time in January. In the circumstances it cannot be said that the judge abused his discretion, so far as related to the issues of fact. Nor did the judge lose jurisdiction to set aside his original order, merely because the time for excepting thereto had passed, if he otherwise had authority to deal with it as though it were an order passed during the same term. The superior court has plenary power over its orders and judgment during the term at which they are entered, and may amend, correct, or revoke them, for the purpose of promoting justice. Berrien County Bank v. Alexander, 154 Ga. 775, 778, 115 S.E. 648. While the discretion in such case is not unbounded, and should be exercised only upon sufficient cause shown (Cahoon v. Wills, 179 Ga. 195, 175 S.E. 563; Hurt Building, Inc. v. Atlanta Trust Co., 181 Ga. 274(4), 182 S.E. 187), the mere fact that the time for suing out a writ of error has elapsed would not take away the discretion or jurisdiction, otherwise existing, to set aside the former order, for meritorious cause. The time limit is the end of the term, not the time when the right of exception expires. A motion to set aside and vacate a judgment cannot be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review unless abused. Storey v. Weaver, 66 Ga. 296; Bowen v. Wyeth, 119 Ga. 687, 48 S.E. 823; Phillips v. Phillips, 124 Ga. 912, 53 S.E. 457; Clark v. Ramsey, 138 Ga. 726, 75 S.E. 1128; Gaines v. Gaines, 169 Ga. 432, 150 S.E. 645. While it seems in this case that the judge passed on the demurrer after taking the case under advisement, and that no further argument or appearance before judgment was contemplated, still in the meantime the attorney for the plaintiff became ill, and if the judge had known of this fact he could have considered it as a good reason for postponing judgment, lest the right of the plaintiff to move against it in a timely and proper proceeding might be imperiled. Under the evidence, the judge was authorized to find, not only that Mr. Watson became ill, but that his condition was such that his failure to notify either the judge or his client of it, before rendition of the judgment, was excusable. Compare Sims v. Sims, 135 Ga. 439, 69 S.E. 545; Brown v. Verekas, 164 Ga. 733, 139 S.E. 344. In the circumstances the judge was further authorized to find that the plaintiff was not at fault in relying solely upon her attorney, the matter being a pure question of law, to wit, whether the petition as amended was subject to dismissal on general demurrer. The case does not depend alone on whether the mere right of exception was lost from such cause. If Mr. Watson had been well enough, he could and might have moved to vacate the judgment for what he conceived to be error, instead of excepting directly; and, as we shall see later, a motion based solely on that ground would have been meritorious. Kerr v. Kerr, 183 Ga. 573, 189 S.E. 20; Phillips v. Aycock, 89 Ga. 725, 15 S.E. 624; Van Dyke v. Van Dyke, 120 Ga. 984, 48 S.E. 380. In the circumstances, the situation was one calling for exercise of a sound legal discretion on the part of the judge, and we cannot say that such discretion was 'manifestly abused.' Bowen v. Wyeth, 119 Ga. 687, 46 S.E. 823; Jones v. Garage Equipment Co., 16 Ga.App. 596, 85 S.E. 940; Sherman v. Stephens, 30 Ga.App. 509, 517, 118 S.E. 567.

In what has just been stated, we have merely assumed that the rule as to control of judgments during the term is applicable. We next consider whether this rule does apply, in view of the fact that the original order sustaining the general demurrer was rendered at chambers or in vacation. There is a kind of negative pregnant to the contrary in Butters Manufacturing Co. v. Sims, 178 Ga. 775(2), 174 S.E. 623 but the question...