Stamps Tire Co. v. Powers, 39112
| Decision Date | 13 November 1961 |
| Docket Number | No. 2,No. 39112,39112,2 |
| Citation | 104 Ga.App. 860,123 S.E.2d 203 |
| Parties | STAMPS TIRE COMPANY, Inc. v. Alton POWERS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The failure of the defendant's counsel to appear in court upon the trial of a suit against the defendant where such absence was not induced by any acts or conduct of the plaintiff or the court, was unmixed with any sort of providential cause, and was without the leave of the court, constitutes no legal reason for setting aside a jury verdict and judgment in such suit.
Stamps Tire Co., Inc. filed its suit on a contract in the Civil and Criminal Court of DeKalb County against Alton Powers on October 7, 1960. The defendant filed his answer to the petition and demanded a trial by jury. On March 13, 1961, the case came on for trial, and there being no response for the defendant and no announcement as to his absence, the plaintiff proceeded to present his case to the jury, receiving a verdict in its favor. On March 14, 1961 the defendant's counsel filed the following motion to set aside said verdict and the judgment entered thereon: 'Comes, now, the defendant in the above styled case, by and through his attorney, James R. Venable, and shows to the court the following facts, to wit:
'That this case is on the calendar for the 13th of March, 1961, for trial, and defendant's counsel, James R. Venable, called the clerk of said court, namely, Mr. Herman Austin, to notify him that he was on trial in the Superior Court of DeKalb County on a rape case, and that it would be impossible for him to be present.
'For some reason, the plaintiff's counsel, Mr. Miles Sams, proceeded to present the matter to the court and jury and took a judgment against defendant without defendant being present, nor defendant's counsel being present, and
'That he brings this motion to vacate and set aside said judgment because of the facts set out, and prays this honorable court to consider said matter, and to vacate and set aside judgment as heretofore alleged, and
'That he issue a rule nisi upon plaintiff, or his counsel notifying them to show cause why said judgment should not be vacated and set aside.'
The trial court sustained said motion on April 20, 1961, and set aside the judgment of the jury. Subsequently, on June 20, 1961 the case came on to trial before the court without a jury, the parties having waived the demand for jury trial, and judgment was rendered for the defendant by an order dated June 20, 1961, whereupon the plaintiff filed his motion for new trial. The judgments under review are the orders of the trial court sustaining the defendant's motion to set aside the verdict and judgment, and denying the plaintiff's motion for a new trial.
Miles B. Sams, East Point, for plaintiff in error.
James R. Venable, Atlanta, for defendant in error.
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...912. The trial judge correctly ruled that appellant's motion was for a new trial under Code Ann. § 81A-160(c). Stamps Tire Co. v. Powers, 104 Ga.App. 860, 123 S.E.2d 203. See Wilkes v. Ricks, 126 Ga.App. 266, 190 S.E.2d Considering the merits of the motion, appellant grounds his position ur......
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