Moore v. Kelly & Jones Co.

• Decision Date: 31 January 1900
• Citation: 35 S.E. 168,109 Ga. 798
• Parties: MOORE v. KELLY & JONES CO.
• Court: Georgia Supreme Court

35 S.E. 168

109 Ga. 798

MOORE v. KELLY & JONES CO.

Supreme Court of Georgia

January 31, 1900

Syllabus by the Court.

1. When it is in a bill of exceptions recited that the same was tendered within the time prescribed by law, the writ of error will not be dismissed because of the failure of the presiding judge to certify the same within the statutory period, unless it be made to appear that his failure to do so was caused by some act of the plaintiff in error or his counsel.

2. 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 be given therefor. The failure of the defendant to appear and plead in consequence of a misunderstanding between it and its counsel affords no such reason.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by V. A. Moore against the Kelly & Jones Company. Garnishment served on the Hunnicutt & Bellingrath Company. Verdict for plaintiff against defendant and sureties on bond dissolving attachment order vacating the judgment, and plaintiff brings error. Reversed.

Culberson & Willingham, for plaintiff in error.

C. D Maddox, for defendant in error.

LITTLE J.

Moore sued out an attachment against the Kelly & Jones Company on the 4th day of October, 1898, returnable to the November term, 1898, of the city court of Atlanta, on the ground of the nonresidence of said company. A summons of garnishment was duly issued and served on the Hunnicutt & Bellingrath Company. On November 1st thereafter the defendant in attachment dissolved the garnishment by giving bond and security as provided by the Code, and name of counsel was marked on the docket of the city court as representing the defendant in attachment. The declaration was duly filed. At the January term, 1899, of said court, cases on the appearance docket were called, and, among others, that of Moore against the Kelly & Jones Company. No answer or plea had been filed, and it was marked in default. On the 5th day of January of the term, the case was called for trial, and the plaintiff submitted evidence making necessary proof to sustain his case. No defense being made, a verdict was rendered for the plaintiff, under the direction of the court for the sum of $600 principal, besides interest, against both the defendant and the sureties on his bond dissolving the garnishment. Judgment followed accordingly. Prior to the rendition of the judgment, the garnishees made answer admitted indebtedness in the sum of $429.63, which was adjudicated as subject to the garnishment. During the term at which the judgment was rendered against the defendant and its sureties, the defendant came and filed a written motion to set aside the judgment, one of the several grounds being that the petition in the original case did not set out any cause of action, nor did it show any valid agreement between the parties under which the plaintiff was entitled to have any recovery, and because there was an agreement between the parties in writing, and the writing was kept concealed, and not exhibited to the court and jury trying the case, and by so doing the plaintiff made it appear that he had a just cause, when in fact he had no right of recovery, and that the withholding of this contract operated as a fraud, and enabled the plaintiff to get an unjust verdict and judgment against the defendant, etc. It was further alleged that the defendant intended to file its defense at a proper time, and an officer of the company came to Atlanta for that purpose, and while there the garnishment was dissolved, but, owing to a misunderstanding between the company's officer and counsel, the defense was unintentionally omitted to be filed. Movant then alleged various reasons why the plaintiff was not entitled to have a judgment against it, and made a recitation of facts tending to show a meritorious defense to the action. On the hearing the judge sustained the motion, and passed an order vacating and setting aside the verdict and judgment, on condition that the defendant pay the cost and give bond in the sum of $1,500, obligating itself to pay to the plaintiff whatever final judgment might be rendered against it in the case. To this order and judgment the plaintiff in error excepted.

1. On the call of the case in this court, a motion was made by counsel for defendant in error to dismiss the writ of error because the bill of exceptions was not signed and certified within 30 days from...