Opinion
38088.
DECIDED FEBRUARY 17, 1960. REHEARING DENIED MARCH 7, 1960.
Motion to set aside and vacate judgment. DeKalb Civil Court. Before Judge Mitchell. October 9, 1959.
Smith, Kilpatrick, Cody, Rogers McClatchey, Robert G. Hunt, for plaintiff in error.
T. M. Allen, Jr., E. C. Harvey, Jr., contra.
This case on its facts is not substantially different from the case of Conway v. Gower, 208 Ga. 348 ( 66 S.E.2d 740), and the rulings made in that case are controlling on the issues presented by the assignment of error on the judgment, or order, vacating and setting aside the final judgment in this case. It follows that, since the motion to vacate and set aside the judgment did not show a meritorious reason for setting it aside, the trial court erred in entering the judgment vacating and setting it aside.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED FEBRUARY 17, 1960 — REHEARING DENIED MARCH 7, 1960.
Goodman filed a petition against Beecham in the Civil Court of DeKalb County seeking to recover from the defendant the sum of $1,500 allegedly paid by the plaintiff to the defendant as earnest money on a contract for the sale of certain real property. The petition alleged that the defendant failed to comply with certain provisions of the contract, and that on account of the failure of the defendant to so perform, the plaintiff rescinded the contract; that the plaintiff demanded the return of the amount paid as earnest money and that the defendant had refused to return the money. The defendant filed a general demurrer, a plea which he denominated a "dilatory plea," and an answer in which he admitted substantially all the allegations of the plaintiff's petition except that he was indebted to the plaintiff in any amount, and he denied that the plaintiff had informed him that he would not go through with the contract, or that the plaintiff had made any demand upon him for the return of the earnest money. As a part of the answer the defendant pleaded certain facts by way of setoff. The plaintiff demurred to the answer and cross-bill, the court overruled the general demurrers thereto and sustained certain special demurrers which order was met by an amendment. This amendment appears to have been filed on July 29, 1959. On August 18, 1959, the court entered the following order in the case: "The foregoing case coming on to be heard before a judge without a jury, and evidence being heard in such case, it is the judgment of the court that judgment be rendered in favor of plaintiff for $1,217.30, plus $15.95, costs."
Thereafter, on August 25, 1959, the defendant filed a motion for a new trial on the general grounds, but this motion was dismissed by counsel for the defendant on September 3, 1959, during the August term of this court. Thereafter, on September 3, the defendant filed a pleading denominated "Defendant's motion to vacate and set aside [the judgment]" in which it was alleged that on August 18, 1959, the case appeared on the trial calendar "unknown to defendant," no order having been issued by the court ruling on the defendant's general demurrer to the plaintiff's petition, and that on that date judgment was entered against the defendant when he was not in court; that the defendant was advised when he filed his amended cross-action that the case would not come up until the September term, and that at the time the case did come up the defendant was out of the State, believing that, having filed his amendment to his cross-action on July 29, the September term would be the term at which the case would be tried; and, he alleged that, "Movant shows that he has a meritorious defense to plaintiff's petition and a meritorious setoff and cross-action, and by reason of the facts heretofore stated, that he had been deprived of an opportunity to present his defense and cross-action to the court, and that by reason thereof he is entitled to have said judgment vacated and set aside." This pleading was sworn to by counsel for the defendant as being true and correct to the best of his knowledge and belief.
The plaintiff filed a general demurrer to the motion and thereafter on October 9, 1959, the Judge of the Civil Court of DeKalb County entered an order granting the defendant's motion to set aside and vacate the judgment and remanding the case to the demurrer calendar on the ground that it was error for the court to proceed with the trial of the case without ruling on the general demurrer to the petition which was undisposed of. The exception here assigns error on that judgment and on the refusal of the judge to sustain the plaintiff's general demurrer to the defendant's motion to vacate and set aside.