DocketNumber: 4429
Citation Numbers: 13 Ga. App. 347, 79 S.E. 184, 1913 Ga. App. LEXIS 149
Judges: Kussell
Filed Date: 8/30/1913
Status: Precedential
Modified Date: 10/19/2024
The Bank of Southwestern Georgia brought suit against Cynthia Styles Wright on two promissory notes; one dated April 25, 1903, and the other February 18, 1905. The defendant filed an answer, in which she averred that the notes were without consideration as far as she was concerned, for the reason that they were given for the debt of her former husband, Jesse Styles, and that her assumption of his debt was null and void. When the ease was called for trial the defendant was absent. Her counsel stated to the court that they did not know why she was not present, and for that reason they were unable to make a showing for continuance. In the absence of a legal showing for a continuance, the trial judge very properly proceeded with the trial; and upon the introduction of testimony in behalf of the plaintiff, judgment was rendered in its favor (the ease being, by consent of counsel
We think this case is fully controlled by the ruling of this court in Benford v. Shiver, ante, 135 (78 S. E. 860). The court was fully authorized to refuse the motion for a new trial, so far as it was predicated upon the general grounds, because the testimony for the plaintiff, not being disputed, required the judgment which was rendered. We think, however, that the court erred in not setting aside the judgment and reopening the case, so as to give the defendant a day in court. While the motion under consideration was presented as a ground of a motion for a new trial, it was filed as a separate paper and after the original motion for a. new trial; and though it was dénominated’as a ground of the motion for a new trial, it was in effect a motion to set aside the judgment. In
In the counter-showing of the plaintiff, the point is made that in the defendant’s showing it does not appear what she expects to' testify upon another trial of the case. The absence of a party, especially when he is the sole party upon his side of the case, may of itself constitute a good ground for a continuance. The defendant had the right to be present, if for no other reason than to assist her counsel in the selection of the jury and in the conduct of the case, and in suggestions upon cross-examination of witnesses for the opposite party; and she had a plea, to sustain which it was-evident she might and would properly be a witness. If she had been present, probably she might have been able to inform her counsel of other sources from which information might have been derived in support of her answer. A motion to set aside a judgment is not confined, like a motion in arrest, to matter appearing upon the record or appearing to be absent from the record; and as was pointed out in the case of Benford v. Shiver, supra (in which the facts are quite similar to those involved in this case), a judgment should be set aside when it appears that a party who had filed a substantial and meritorious defense was kept away from court under’such circumstances as that the court should have continued the ease upon a timely motion for a continuance which informed the court as to the true reason of the party’s absence.
A wife whose deceased husband has left no children, and who is by law his sole heir, can take his property and, by paying his debts, avoid an administration, if all his creditors consent; and it may be that there is nothing in the defense that the debt evidenced by the notes is the debt of the defendant’s deceased husband. Perhaps, however, a wife who assumes one of her husband’s debts,
It is not disputed that the defendant was eighteen miles from court at the time the judgment was rendered, and seriously ill with chills and malarial fever, and the seriousness of her illness is indicated by the affidavit of the attending physician, who, on July 36, swore that she still was unable to leave her home for any purpose whatever.
The refusal to set aside the judgment upon the ground of the defendant’s illness seems to have been based on the fact that the court was in session three days before the date upon which the judgment was rendered, and that the defendant then had a husband who lived with her and who could perhaps have brought information of his wife’s sickness to her counsel. It would seem that in a state of ideal connubial felicity nothing would be more natural than for a husband to find pleasure in the prompt and eager discharge of his spouse’s slightest wish, to say nothing of that impelling sense of duty which would unconsciously'actuate him to attend to any of her business affairs, and thus relieve her from even the smallest annoyance, but the evidence does, not disclose whether the tie which bound Shade to Cynthia was the silken cord of love or the hateful chain of convention. As applied to modern wives and husbands the phrase “living together” does not always import that they are living at the same place. ■ The expression merely implies that there has been no separation, voluntary or legal, which can legally be said to have released either from their duties to the other under the strict letter of the law. We think, there
Judgment reversed.