Southland Lumber Co. v. Bales , 7 Ga. App. 227 ( 1909 )

Hill, C. J.

(After stating the foregoing facts.)

The question raised by the foregoing facts is so peculiarly one of judicial discretion that this court would not feel authorized to interfere, unless such discretion was manifestly abused. Under the movant’s own presentation of the facts, we think the court did not abuse his discretion in refusing to grant another trial. It is perfectly true, as claimed by counsel for the plaintiff in error, that where an attorney is absent by permission of the court, the court should take no action in his case during the time when he is absent by leave of the court; and it is hardly to be presumed that a trial judge would make anjr disposition of a ease during the absence of an attorney in a case under leave. Here, however, the court was informed that the attorney to whom he had granted a short leave of absence was not in fact the attorney for the defendant against whom the verdict was rendered on the following day; and, when the case was called in its order for trial, the defendant appeared to be unrepresented, and, so far as the court knew, the situation had not changed since the announcement on the previous day. The court had no knowledge that the attorney whose name had been stricken on the previous day had subsequently been employed and was again representing the defendant. This knowledge the court could not have had unless such information had been given to him by the attorney himself, or by the party, or by an entry on the docket. The attorney had every opportunity to have so informed the 'court on the afternoon of the day before the trial, and on the morning just before the case was tried, when he asked for leave of absence. It was his duty, knowing that he had asked the court to strike his name as defendant’s counsel on the day before, and that the case was in order for trial, to inform the court that he had subsequently been employed by the defendant and was then representing it. Not only is this so, but the party, by the exercise of proper diligence, should have had this information conveyed to the court in person, or by having a proper entry of the fact made upon the docket. The manager of the defendant company was specifically informed on the day before that the court had stricken the name of his attorney, in compliance with that attorney’s request; that the case would be continued until next day, when it would be in order for trial, and that unless the defendant was then represented, judgement would be entered by default against it. It is therefore clear to our minds that both counsel and party were guilty of such laches as to preclude them from any relief from the court. The defendant does not set out in the affidavits in support of its motion for a new trial any facts which would tend to show that it had a meritorious defense to the suit. It contents itself with the general statement that it did have a meritorious defense, but leaves to the imagination of the court the facts showing that defense. Before it would have the right to expect relief from the result of its own negligence, it should at least show that injustice had been done. Of course, the contention that the court was not authorized to call the case, because at the previous term it had been stricken from the docket and had not been formally reinstated, is untenable under the facts. The court, immediately after dismissing the case for want of prosecution, announced that he would reinstate the case, and this announcement was made by consent of the attorney who then represented the defendant. No formal order was necessary to reinstate the case, especially as no formal order of dismissal had been taken; and if such formal order had been necessary, it could have been taken nunc pro tunc. The fact that the court had called the case for trial was a sufficient publication of the fact that the case had been reinstated and was open on the docket. The plaintiff clearly proved his case, and the special facte contained in the motion for new trial as amended present no just or valid reason why the verdict should be disturbed. Judgment affirmed.