Szekeres v. Walter E. Heller & Co. ( 1969 )

Hall, Judge.

The defendant Szekeres appeals from the order of the trial court overruling his motion for new trial.

Orders of the court show that upon motion of the plaintiff this case was specially set for trial in the Civil and Criminal Court of DeKalb County on January 18, 1968, and on that date the case was heard and a judgment entered against the defendant, and on January 24 that judgment was vacated. The following judgment was entered on May 22, 1968: “The above and foregoing case coming regularly to be heard, was heard before the judge presiding without the intervention of a jury, no appearance being made on behalf of the defendant, and after hearing evidence; It is considered, ordered and adjudged that the plaintiff have judgment against the defendant in the amount of $120,132.24, principle [sic] together with interest in the amount of $25,277.72 and all cost of court.” In the defendant’s amended motion for new trial the following facts are stated and verified by affidavits: The case came on before the presiding judge on May 20, 1968, at which time the defendant’s counsel was appearing before a United States district court in a criminal case, and his law partner appeared and informed the court of this fact, and the presiding judge set the case for May 22. The defendant’s counsel was then still before the United States district court, and his law partner was appearing in the Fulton County Superior Court but called the clerk of court and informed him of the position of defendant’s counsel. The case was called and the presiding judge entered judgment against the defendant.

Argued March 5, 1969 Decided June 13, 1969 Rehearing denied July 2, 1969 Henritze & Smith, Walter M. Henritze, Jr., for appellants. Gerstein & Carter, J. David Chesnut, for appellee.

The defendant argues in this court that his motion for new trial should have been granted because the only evidence before the court when it entered judgment had no probative value, being in the form of answers to interrogatories propounded by the plaintiff corporation to an officer of the corporation and being otherwise insufficient. The record shows that these interrogatories were served on the defendant and filed in court, and the defendant filed no objection, motion or other response thereto. The argument of the defendant is answered adversely to it by the decision in Randall v. LeGate, 115 Ga. App. 574, 582 (155 SE2d 415).

Judgment affirmed.

Jordan, P. J., concurs. Whitman, J., concurs specially.