Cofer v. Maxwell , 201 Ga. 846 ( 1947 )

1. "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 is given therefor."

2. Under the facts shown by the record, no meritorious ground existed for setting aside the judgment which required an amendment to the petition within a specified time, or else the petition to be considered dismissed, and with which the petitioner failed to comply as required by the law. Accordingly, the action of the judge in setting aside such original judgment, and permitting the filing of an amendment after the expiration of the time specified therein, was an abuse of discretion requiring reversal of the judgment.

No. 15716. FEBRUARY 6, 1947. In an action by Mrs. W. L. Maxwell against M. P. Cofer and others for injunction against the cutting of timber on homestead property of Cofer, and for other equitable relief, the court, on April 15, 1946, granted a restraining order and sustained certain grounds of demurrer to the petition, with the right of the petitioner to amend her petition within five days to meet the said grounds, or else the said petition to be considered dismissed. Because of some uncertainty on the part of the petitioner's counsel as to the meaning of the judgment upon demurrer, there was some correspondence between them and the judge with delay in the delivery of letters by mail. The petitioner filed an amendment within the five days, but failed to have it allowed by the court. On April 22, 1946, the judge advised the petitioner's counsel that their failure to present the amendment and have it allowed had caused the court to doubt its right to proceed further in the matter, having possibly lost jurisdiction. On April 29, 1946, the petitioner filed a petition to vacate the former judgment of April 15, 1946, which provided for five days within which an amendment might be filed, which petition recited certain facts, including the correspondence between the petitioner's counsel and the judge in respect to counsel's failure to have the amendment allowed by the court. The petition to vacate the former judgment was made returnable to the first day of the May term of court, the appearance term of the case as originally filed. During this May term the defendants filed a petition to dismiss the case and sought revocation of the restraining order previously granted and unrevoked. Upon hearing the two motions, the court, on May 10, 1946, passed two orders, one overruling the motion to vacate the previous judgment of April 15, 1946, and the second sustaining the defendants' motion to dismiss the case and revoking the restraining order previously granted, the reason assigned in each order being that the court had lost jurisdiction of the case upon the failure of the petitioner to properly amend her petition. InMaxwell v. Cofer, 201 Ga. 222 (39 S.E.2d 314), it was ruled by this court that the trial judge had erred in holding that he was without jurisdiction to pass upon the merits of the motion to vacate the judgment of April 15, 1946; and it was also held that the petitioner was entitled to a ruling thereon, and that the judge erred in dismissing the petition and revoking the restraining order.

Upon the judgment of reversal by this court being made the judgment of the trial court, the motion of the petitioner to set aside the judgment of April 15, 1946, was renewed and arguments had thereon. Counsel for both sides stipulated that the facts recited in the motion to vacate were true, and further, that Washington, Georgia, the county seat of Wilkes County, was 25 miles distant from Thomson, Georgia, the residence of the judge of the court in which the order of April 15, 1946, was rendered; that regular bus schedules were maintained in both directions between Washington and Thomson about every two hours each day; that there was daily mail service between those points; that telephone service existed between the said points; and that the travel time between them was less than one hour in either direction.

After hearing argument the court reserved its decision and on November 4, 1946, entered judgment sustaining the motion to vacate and set aside the judgment of April 15, 1946, and permitting counsel for the movant to amend the petition for injunction; and the original amendment filed with the clerk of the court on April 16, 1946, was allowed by the court, ordered filed, and was refiled in the office of the clerk on November 6, 1946.

The exception here is to that judgment, the plaintiffs in error contending that it was an abuse of discretion. It having become the law of the case, under the ruling by this court on its former appearance here, that the movant was, under her motion to set aside the judgment of April 15, 1946, entitled to a ruling on the merits of the motion, it remains to be decided only whether or not the court abused its discretion in setting aside the said judgment and allowing an amendment to be filed as of November 6, 1946.

Where a judgment is not based on a jury verdict, courts of record maintain full control over such a judgment during the term at which rendered, and, in the exercise of a sound discretion, may revise or vacate the same, and this discretion will not be controlled by a court of review unless manifestly abused. Bowen v. Wyeth, 119 Ga. 687 (46 S.E. 823); Berrien County Bank v. Alexander, 154 Ga. 775 (115 S.E. 648); East Side Lumber Coal Co. v. Barfield, 193 Ga. 273, 276 (18 S.E.2d 492);Gobles v. Hayes, 194 Ga. 297 (21 S.E.2d 624). "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 is given therefor." Moore v. Kelly,109 Ga. 798 (2) (35 S.E. 168); Kellam v. Todd, 114 Ga. 981 (1) (41 S.E. 39); Deering Harvester Co. v. Thompson,116 Ga. 418 (42 S.E. 772); Van Dyke v. Van Dyke, 120 Ga. 984,986 (48 S.E. 380); Cahoon v. Wills, 179 Ga. 195, 196 (175 S.E. 563); Hurt Building Inc. v. Atlanta Trust Co.,181 Ga. 274, 283 (182 S.E. 187). In Cahoon v. Wills, supra, it was said: "The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice."

It is conceded that the amendment filed in the office of the Clerk of the Superior Court of Wilkes County at Washington, Georgia, on April 16, 1946, had not been allowed by the judge. As shown by the record, counsel for the movant, on April 16, 1946, addressed a letter to the judge, residing at Thomson, Georgia, informing him that an amendment, copy of which had been served on opposing counsel, had been filed in the office of the clerk of the court, and that counsel for the movant thought that the amendment met the grounds of demurrer. This letter was duly received by the judge. It further appears that counsel later entertained some misgivings as to whether or not the amendment should have been filed with the clerk to enable the opposing counsel to file any objections or should have been first mailed directly to the judge. Accordingly, on April 19, 1946, counsel for the movant addressed a letter to the judge at Thomson, Georgia, expressing a feeling of uncertainty as to whether the judgment had been complied with, and requesting that, if the five-day limit was intended to apply from the time the amendment was presented to or allowed by the judge, a further extension of time be granted. This letter did not reach the judge until the morning of April 21, 1946, too late for him, if he had been so disposed, and before the original time limit expired, to have granted an extension of time for the filing of an amendment in compliance with the law. These facts are undisputed, and there was a stipulation as to other facts which have been set out herein before as to the distance between Thomson, the residence of the judge, and Washington, Georgia, the county seat, means of transportation, communication, etc.

In the state of the record we perceive no meritorious ground for setting aside the judgment. In clear and unmistakable language it provided that the petition was to be considered dismissed unless amended within five days to meet the grounds of objection. An amendment was filed the following day in the office of the Clerk of the Superior Court of Wilkes County at Washington, Georgia, but without having been allowed by the judge. Lacking such allowance, the amendment was wholly insufficient as a legal compliance with the judgment. As ruled on the former appearance of the case here, the petition thus became automatically dismissed at the end of the five days. Counsel for the movant, if momentarily unaware of the necessity for the judge's allowance of the amendment to give it legal efficacy, could readily have informed themselves of this fact. Had they examined the law as late as April 19, 1946, when they inquired of the judge by letter as to the requirements of the judgment, they would have had ample time in which to have drawn an amendment, to have had it allowed, and to have filed it within the five-day period specified in the judgment of April 15, 1946. It is shown by the stipulation of facts, that the home of the judge at Thomson was only 25 miles distant from Washington, the county seat of Wilkes County, wherein was located the office of the clerk of the superior court in which the judge presided; that regular bus schedules were maintained in both directions between the towns about every two hours each day; and that the travel time between them was less than one hour. Through some unusual circumstances the judge did not receive the letter until April 21, but the use of the mails as late as April 19, 1946, was at their peril, and their negligence in not obtaining a timely allowance of the amendment by the use of facilities easily available each day can not constitute a meritorious ground for setting aside the judgment. The action of the judge in setting aside the judgment of April 15, 1946, and permitting the amendment to be filed after the expiration of the five-day period originally specified, was an abuse of discretion under the facts of this case.

Judgment reversed. All the Justices concur.