Dortic v. Lockwood , 61 Ga. 293 ( 1878 )

Warner, Chief Justice.

This was a motion to set aside a judgment obtained in the city court of Augusta on the 25th day of' November, 1872, on the following grounds-: 1. Because no notice containing a copy of the note on which the judgment was rendered was personally served on the movant prior to the commencement of the suit on such copy-note. 2. Because the original of the copy-note was not stamped according to the internal revenue acts. 3. Because the copy-note was not so stamped. 4. Because the affidavit purporting to verify the copy-note was not made by the owner of the original, or his agent, or legal representative. 5. Because the copy-note was not established according to law. 6. Because the plaintiff, in his declaration, set out no legal cause of action against the movant. 7. Because the judgment is not based on the verdict of a jury. 8. Because the city court had no jurisdiction to render such judgment. 9. Because the judgment is illegal. The court- overruled the motion on all the grounds, and the movant excepted.

1. The motion to set aside the judgment was filed on the 18th of May, 1878. It appears from the record before us that the defendant was personally served with the declaration and process in the suit in which the judgment was rendered against him, as required by law. The city court of Augusta having jurisdiction of the person of the defendant and of the subject matter of the suit in which the judgment was rendered, and there being a legal cause of action set forth in the plaintiff’s declaration, the first five grounds taken in the motion were merely alleged irregularities had upon the trial of the case, and constituted no legal grounds for setting aside the judgment.

2, 3. The seventh, eighth and ninth grounds will be considered together. It appears from the record that there was no issuable defense filed on oath nor trial demanded, and that judgment was awarded by the court without a jury. This is complained of as depriving the defendant of his constitutional right of trial by jury. The act of 1870 authorized the city court of Augusta to render judgment without the verdict of a jury, in all civil cases founded on contract, where an issuable defense was not filed on oath. This ' act did not deprive the defendant of the right of trial by jury. All that he had to do to obtain it was to file an issuable defense on oath, which he failed to do. By the act of 24th of August, 1872, the judge of the city court of Augusta was authorized to give judgment in all civil cases of which that court had jurisdiction, and award execution thereon; provided always, that either party in any case shall be entitled to a trial by jury upon entering a demand therefor in writing, on or before the call of the docket of said court to which the ease is returnable. But it is said the court to which the case was made returnable was held on the fourth Monday in August, 1872, and that said act was passed on the 24th of August, 1872, therefore there was not sufficient time for the defendant to have had notice of its passage, as required by the third section of the Code, so as to enable him to have demanded a jury trial at that term of the court. -Be that as it may, the judgment was not rendered against him until the 25th of November, 1872, so 'that if the defendant had been anxious for a jury trial he could have opened the default, and have demanded a jury at the trial term of the case, but the defendant made no effort to obtain a jury trial, either by filing an issuable defense on oath, or by demanding it at any time before judgment, but on the' contrary has laid by for nearly five years and a half without having made any motion to set aside the judgment of which he now complains. The courts do not favor such dilatory applications to set aside judgments, especially when there has been personal service on the defendant as in this case. Dobbins vs. Jenkins, 51 Ga., 203.

Let the judgment of the court below be affirmed.