Streety v. John Deere Plow Co.

In the opinion rendered the court did not overlook the assignment of error that "the lower court erred in entering its order dated November 8th, 1924, overruling and denying the motion of the defendant, J. D. Streety, that the said final judgment made and entered September 10th, 1924, be vacated and set aside and the defendant be allowed to plead to the said cause of action then pending against him."

This was discussed in the consideration of third and fourth assignment of error.

The record shows that due notice of the hearing upon the demurrer to pleas of defendant had been accepted by the defendant's attorneys — and that they failed to be present at argument and make due application to the court for leave to file additional pleas was their own omission, and not the fault of the lower court. Under the notice given, it was permissible to enter the final judgment. As to setting aside the judgment to allow the plea of payment, the motion was lacking in any showing of diligence. No excuse of any kind was offered for failure to present such plea before, and the question of opening the judgment, was for the consideration and within the discretion of the trial judge. Evidently the judge was in position to pass upon the matter and his discretion should not be disturbed.

The petition for rehearing is denied.

WHITFIELD, ELLIS, TERRELL, STRUM AND BUFORD, J. J., concur.