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Lawskills.com Georgia Caselaw
ODOM v. ODOM.
18022.
Divorce. Before Judge Thomas. Glynn Superior Court. September 8, 1952.
WYATT, Justice.
The judgment of the court below, sustaining a general demurrer to the motion to set aside the judgment in the instant case and dismissing the motion to set aside the judgment, was not error.
The defendant in error brought suit against the plaintiff in error in Glynn Superior Court, seeking a total divorce. The trial was continued from time to time until July 17, 1952. When the case was called for trial on that date, counsel for the plaintiff in error moved to continue the trial again on the ground that his client was ill in a hospital in New Orleans, Louisiana, and was unable to be present at the trial, and that he could not safely go to trial without his client. The motion was denied and the case proceeded to trial. A total divorce was granted and both parties were given the right to remarry. No alimony or attorney's fees were awarded the wife. Within thirty days of the judgment, the plaintiff in error moved to set the judgment aside on the sole ground that the motion to continue was erroneously denied.
The motion to set aside the judgment showed the following facts: The plaintiff in error lived in New Orleans, Louisiana. She filed an answer to the petition for divorce and was present in Glynn Superior Court on May 19, 1952, when the case was previously set for trial, but the case was continued because of the illness of counsel for the plaintiff (defendant in error here). The case was reassigned for trial on July 17, 1952, and the plaintiff in error became ill and was a patient in a New Orleans hospital on July 8, 1952. The motion then alleges that, "As soon after being placed in the hospital as petitioner could, she contacted Lenfant & Villere, attorneys at law of New Orleans, Louisiana, who are representing her in this case with the law firm of Gowen, Conyers, Fendig & Dickey." The New Orleans attorneys then got in touch with the Brunswick attorneys, and were informed that it would be necessary to get an affidavit from the doctor attending the defendant stating the nature and extent of her illness and whether she would or would not be able to appear in court on July 17, 1952. The petitioner asked the hospital authorities to prepare such an affidavit and send same to Gowen, Conyers, Fendig & Dickey by air mail, and was advised by them that the affidavit was sent on July 15, 1952, in time to reach Brunswick, Georgia, by the morning of July 17, 1952. "Petitioner is informed and believes that the said hospital authorities did not mail any information to the said attorneys until July 16, 1952, and that she letter was sent by regular mail and did not reach Brunswick, Georgia, until July 19, 1952, after the case had been tried and judgment adverse to defendant rendered."
The motion then alleges that the petitioner is informed and believes that, when the case was called for trial on July 17, 1952, her attorney moved for a continuance and in support of the motion told the court the facts regarding her illness, and stated that the affidavit above referred to had not been received, and that he could not properly go to trial without his client. The court overruled the motion and refused to continue the case, and, after hearing the evidence of the plaintiff, rendered judgment in favor of the plaintiff. It is then alleged that the petitioner is informed and believes that she has a meritorious defense to the plaintiff's petition and, had she been present and had an opportunity to present her defense, the court would have rendered a different judgment.
A copy of an affidavit signed by a doctor and dated August 12, 1952, is attached to the motion. The affidavit is to the effect that the plaintiff in error was a patient in the United States Public Health Hospital in New Orleans on July 17, 1952, and that she could not have been present in court in Brunswick, Georgia, on that date without endangering her health.
The defendant in error filed general and special demurrers to the motion to set aside the judgment. The general demurrers were sustained. Certain of the special demurrers were sustained and others overruled. To the judgment sustaining the demurrers the plaintiff in error excepted.
A petition to set aside or modify a judgment in a divorce case must be based upon "good and sufficient grounds" which must meet the requirements for a new trial in substance and form. See Code (Ann. Supp.), 30-101; and Carnegie v. Carnegie, 206 Ga. 77 (55 S. E. 2d, 583), and cases there cited. The motion to set aside in the instant case is based upon the sole ground that the trial judge erroneously denied a motion, which was based upon the illness of the defendant, to continue the case when it was called for trial. Such a motion to continue must be supported by an affidavit of the attending physician, or like evidence, and must state that the condition of the party is such as to prevent his attendance in court. Pope v. U. S. Fidelity & Guaranty Co., 200 Ga. 69 (35 S. E. 2d, 899). Statement of counsel to the effect that his client is ill and unable to appear in court, or a letter written by a party to his counsel, or a letter from a party to his attorney is not a sufficient showing to entitle one to a continuance on account of illness. See Morley v. Bridges, 65 Ga. App. 64 (15 S. E. 2d, 260); O'Barr v. Alexander, 37 Ga. 195; McElveen Commission Co. v. Jackson, 94 Ga. 549 (20 S. E. 428).
No affidavit was submitted to the court in the instant case. It is insisted, however, that if, in a motion to set aside a judgment in a divorce case, it is shown that the party and her attorneys exercised reasonable care and diligence to get an affidavit of illness before the court but failed to do so, they are entitled to have said judgment set aside. Admitting the correctness of this proposition, it is not shown in the motion to set aside in the instant case that reasonable care and diligence were exercised.
The motion states that the case was set for trial on July 17, 1952, and that the defendant became ill on July 8, 1952. The motion further states that, "As soon after being placed in the hospital as petitioner could," she contacted her New Orleans attorneys. It does not appear how soon she became able to contact her New Orleans attorneys or when she contacted her New Orleans attorneys. It does appear, however, that on July 15, 1952, the petitioner asked the hospital authorities to prepare and send by air mail to Gowen, Conyers, Fendig & Dickey an affidavit, which it is alleged was in time to have reached Brunswick, Georgia, by the morning of July 17, 1952. It is then alleged that the said hospital authorities failed to send the affidavit until July 16, 1952, and that they sent it by regular mail with the result that it, did not reach Brunswick until July 19, 1952, after the trial had been completed.
These allegations show on their face a failure to exercise the care and diligence required to entitle a party to a continuance on account of illness. The allegation that, "as soon after being placed in the hospital as petitioner could," she contacted her New Orleans attorneys, without any allegation as to what her condition was that prevented her from contacting her attorneys and as to #hen this condition disappeared and as to when she contacted her attorneys, is not a sufficient allegation of diligence on the part of the petitioner. Nor is the allegation that she asked the hospital authorities to prepare and send by air mail an affidavit to her attorneys in Brunswick, Georgia, an allegation showing the required care and diligence. The reasonable care and diligence which was required would demand that the petitioner or her attorneys secure the affidavit from the attending physician and themselves send it in a manner calculated to reach its destination in time to be presented to the trial judge on the call of the case. This they failed to do, but left it to the hospital authorities to mail the affidavit, which they failed to do at the time and in the manner suggested by the petitioner.
It follows that, since no affidavit was produced on the call of the case and since the motion to set aside the judgment does not show that the petitioner and her attorneys exercised due care and diligence in attempting to procure such an affidavit, it was not error to sustain the general demurrer and dismiss the motion to set aside.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
V. E. Mitchell and Colon J. Cogdell, contra.
Gowen, Conyers, Fendig & Dickey, for plaintiff in error.
ARGUED NOVEMBER 12, 1952 -- DECIDED JANUARY 12, 1953.
Saturday May 23 04:20 EDT


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