Beall v. Marietta Paper Mill Co. , 45 Ga. 28 ( 1872 )

McCay, Judge.

"We recognize fully the rule that the act of the Court ought not to injure any one. And did it appear to us that the defendant had been damaged by the refusal of the Court to recognize the leave of absence of Mr. Phillips, however unjust such a leave might have been to the plaintiff, we should affirm this judgment, setting aside the rule absolute. But it is not clear to us that Judge Knight was not in the right in refusing to delay the case for the absence of Mr. Phillips.

When the case was called, the day before, the plea was stricken out, because the sum claimed to be abated from the note was left blank, so that there was in fact no plea. The defendants was given until next day to perfect the plea from the interrogatories of the plaintiff then in Court. That Mr. Phillips got leave of absence next day, was no excuse for not perfecting his plea. It might easily have been done on the day the case was first called; it might have been done that night. The thing to be done was office work, the examination of the plaintiff’s interrogatories, and from them perfecting the plea. A leave of absence of an attorney from the Court-house, on agreement that his cases shall not be tried, is strained very far when it is used to pass cases when there is no plea. Had Mr. Phillips perfected this plea, and thus had an issue before the Court, his rights to have the case passed would have been very clear. But we can well see how Judge Knight may have felt that his leave of absence could not fully excuse the failure to perfect the plea which might well have been done notwithstanding the leave.

But, as appears from the record, there is yet no statement under oath of a substantial defense. The claim of an abatement of the plaintiff’s demand is still only insisted on in a loose, indefinite way. No specification is made and definite amount fixed.

Mr. Phillips is dependent on the plaintiff’s answer for his defense. That he admits, and yet, having it before him, he fails even yet to point out in what respects and to what amount the note exceeds the proper indebtedness.

As appears to us the plaintiff’s answers show the note to be right, and that, in the two respects mentioned in the plea, to-wit: the commissions and the exchange, there is no error. Nothing is set forth in the motion in denial of the plaintiff’s answers, nor does it appear at all that, if Mr. Phillips had been present, it would have been possible for him to perfect the plea so as to set out a substantial defense.

It would be grossly unjust to the plaintiff to delay him in the mere abstract proposition that Judge Knight had given Mr. Phillips leave of absence, and then went on with this case in spite of the leave. It ought to appear, in some satisfactory way, that a wrong has been done; that Mr. Phillips, if present, could have helped the defendant’s case. This is not the absence of an attorney at the trial, when the loss of his skill and learning is manifest. The damage here is, that Mr. Phillips, in consequence of this leave, failed to amend and perfect the plea. Could he have so done if present?

We think this ought to have appeared in the motion — such facts of defense as made a good plea ought to have been stated and sworn to — plenty of time was given for this; a special consent that the motion might be amended was entered into. Yet still, no definite, distinct facts are set up; and if the plaintiff’s answers are true, it would appear that no such defense can be set up. It is true, that it is apparent that a part of this note is for interest at more than seven per cent. But even in the stricken plea no defense of usury is set up, nor is there in any of the motions any claim to put the defense on this ground.

In our judgment, therefore, Judge Parrott erred in setting aside the judgment, for the simple reason that it is not made to appear that the plea oan be truthfully amended so as to present a substantial defense.

Judgment reversed.