Landau Bros., Inc. v. Towery
| Decision Date | 09 April 1935 |
| Docket Number | 24450. |
| Parties | LANDAU BROS., Inc., v. TOWERY et al. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Atlanta municipal court may set aside its judgments in suits involving less than $300 (Laws 1933, p. 297, § 5 (a).
Atlanta municipal court may set aside judgment on motion instituted after judgment term, and may set aside judgment without payment of court costs, unless it is default judgment (Code 1933, §§ 110-402 to 110-404).
Trial court has broad discretion in passing on motion to set aside judgment, exercise of which discretion is conclusive unless abused, but must be based on some legal ground and meritorious reason.
Setting aside judgment for plaintiff, entered in absence of defendants and their counsel, on ground that when case was checked by agreement, it was agreed that there would be no trial until such time as counsel agreed thereto and that defendants' counsel did not consent to trial held not abuse of discretion.
Error from Municipal Court of Atlanta, Appellate Division.
Suit by Landau Bros., Inc., against H. E. Towery and others. Judgment for plaintiff, defendants' motion to set aside the judgment was granted, and plaintiff brings error.
Affirmed.
J. B McCallum, of Atlanta, for plaintiff in error.
Wm. T Woolf and Wm. A. McClain, both of Atlanta, for defendants in error.
Syllabus OPINION.
1. "Under section 5 of the Act of August 19, 1916 (Ga. Laws 1916, pp. 199, 202), the municipal court of Atlanta has 'the same power and authority to vacate, modify, set aside, or change at any time any of its judgments as is now conferred upon or exercised by the judges of the superior court of this state." Longshore v. Collier, 37 Ga.App. 450 (1), 140 S.E. 636, 637; Payne v. Alterman, 42 Ga.App. 663 (1), 157 S.E. 121. This express power over "any" of its judgments was not impliedly repealed or taken away by the mere general provision in section 5 (a) of the amendatory act of March 10, 1933 (Ga. Laws 1933, pp. 290, 297), that, "where the amount sued for or the value of the property claimed or the amount of the lien sought to be enforced is less than three hundred dollars exclusive of interest, attorneys' fees, and costs, the suit or action shall be filed and proceed as in justice courts and under the practice thereof existing under the laws relating thereto, except as herein provided and as may be provided by rules of said Municipal Court of Atlanta." A similar provision, except that the amount fixed was $500, contained in section 37 of the act of 1925 (Ga. Laws 1925, pp. 370, 379), was effective at the time of the above decisions. The municipal court of Atlanta, having therefore wider jurisdiction and powers, is not controlled in the setting aside of a judgment for less than $300 by the restrictions upon a justice of the peace, who "has no authority to set aside a judgment rendered by him." Edwards & Daniel v. Edwards, 163 Ga. 825 (3), 137 S.E. 244, 246; Barnes v. Mechanics' Bank, 22 Ga.App. 214, 216, 95 S.E. 757.
2. In such a case, where good cause exists for setting aside the judgment, and the procedure by rule nisi and otherwise is proper, the motion need not be instituted at the term at which the judgment was rendered. Longshore v. Collier, supra (headnote 3); Hamilton v. Hardwick, 47 Ga.App. 513 (1), 170 S.E. 826; Schofield's Sons Co. v. Vaughn, 40 Ga.App. 568, 569, 150 S.E. 569. Nor is the payment of the court costs a prerequisite to the setting aside of the judgment, if it is not one of default controlled by the general statutory rules regulating the opening of defaults. See Code 1933, §§ 110-402 to 110-404; Rawls v. Bowers, 48 Ga.App. 324 (1, 3), 172 S.E. 687.
3. In passing upon a motion to set aside a judgment, the trial court has a broad discretion, although it must be a sound discretion founded on some legal ground and meritorious reason. Kellam v. Todd, 114 Ga. 981 (1), 41 S.E. 39; Walker County Fertilizer Co. v. Napier, ...
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