Fain v. Fain

Gilbert, J.

1. “The allegations of the petition, not having been denied by any answer, are to be taken as true, without the introduction of evidence. Civil Code (1910), §§ 5539, 5662.” Higgs v. Higgs, 144 Ga. 20 (85 S. E. 1041).

2. The judgment setting aside the previously rendered verdict and judgment was in response to an oral motion. There was no written petition. The case was not an equitable proceeding under the Civil Code (1910), §§ 4584, 4585. ■ There was no motion for a new trial; there was no motion to open the default. § 5654. Held, that the court erred in setting aside the verdict and judgment.

3. The facts do not bring the case within the rule in Clark v. Ramsey, 138 Ga. 726 (75 S. E. 1128), and similar cases.

4. We do not rule upon the question of whether a verdict can in any case be “set aside and annulled” ,on an oral motion merely, without a brief of evidence and other indicia of a motion for new trial.

Judgment reversed.

AU the Justices concur. Augustine Sams and C. Holland Feagan, for plaintiff. Audley M. Lane and BJ. Paul Carpenter, for defendant.