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Motion to set aside verdict and judgment. DeKalb Civil and Criminal Court. Before Judge Mitchell.
JORDAN, Judge.
The defendant's motion to set aside the verdict of the jury, and judgment entered thereon being based upon sufficient legal reason to authorize said relief, it was not error for the trial court to overrule the general demurrer to said motion and to sustain the same.
T. C. Burton filed suit in the Civil and Criminal Court of DeKalb County for money had and received against Herman
P. Gilder on July 14, 1961. The defendant on August 7, 1961, filed his answer and cross-bill, and on April 9, 1962, the case came on for trial. The jury, after hearing the evidence adduced in behalf of the plaintiff (there being no appearance by the defendant), returned a verdict for the plaintiff and judgment was entered thereon. Subsequently, on April 16, 1962, the defendant filed a motion to set aside the verdict and judgment in said case which motion recited in part as follows:
"Movant shows that said case appeared on the published calendar of said court for the April, 1962, term as aforesaid, but due to inadvertence or mistake in publishing said case on said calendar defendant's attorney, W. Harvey Armistead, name did not appear on the said published calendar, for this reason defendant has not had his day in court to plead to the merits of said case as the law provides."
The plaintiff demurred generally to said motion, and on May 4, 1962, the court, after hearing argument of counsel, overruled the plaintiff's demurrer and entered the following order sustaining the defendant's motion to set aside the verdict and judgment: "The within motion to vacate and set aside verdict and judgment coming on to be heard; and it appearing to the court from the evidence introduced that the defendant's counsel, W. Harvey Armistead's, name did not appear on the published calendar and did not appear upon the original calendar made up by the clerk of this court; and since the law requires that the trial calendar of this court be published in the DeKalb New Era, the official publication of this county, and that since the name of the defendant's attorney did not appear on said published calendar and to the contrary another attorney's name appeared as representing the defendant,
"It is, therefore, the opinion of the court that since the law requires the calendar to be published and that counsel for the various parties having cases pending in this court has the right to rely upon the published calendar as being correct, therefore, since the calendar was published incorrect, the motion to vacate the verdict and judgment is hereby granted."
The exception is to the order of the trial judge overruling the plaintiff's demurrer to the defendant's motion and sustaining said motion.
As stated by this court in the recent case of Stamps Tire Co. v. Powers, 104 Ga. App. 860 (123 SE2d 203), the failure of the defendant's counsel to appear in court upon the trial of a suit against the defendant where such absence is not induced by any acts or conduct of the plaintiff or the court, is unmixed with any sort of providential cause, and is without the leave of the court, constitutes no legal reason for setting aside a jury verdict and judgment in such suit.
Where as in the instant case, however, the defendant's motion is predicated upon an error in the preparation and publication of the official court calendar, as required by law (Ga. L. 1960, pp. 2167, 2168), which error results in the omission of the name of the defendant's counsel from said published calendar, and the substitution of the name of another attorney in lieu thereof, it cannot be said that said motion is without sufficient legal reason to authorize the trial judge to set aside a jury verdict and judgment. See Ferry v. Maryland Cas. Co., 102 Ga. App. 475 (116 SE2d 620), in which it was held that the construction placed upon its own rules by a court of original jurisdiction is conclusive where it does not clearly appear that such construction is wrong and that an injustice has been done. The trial court in the present case held that the parties appearing in said court and their counsel had the right to rely on the official publication of the court calendar as being correct, and found that the non-appearance of the defendant and counsel in this case was induced by an error in said publication. This appears to be a reasonable conclusion and a fair construction of the statute requiring publication of the calendar, and is not in conflict with the decision of this court in Watts v. Jackson, 22 Ga. App. 31 (95 SE 324) (in which it was held that the trial court did not err in holding that the failure of the defendant to appear, personally or by counsel, in court on the call of the trial of his case because the case had been incorrectly stated in a newspaper in which the court calendar was printed, was not sufficient reason to set aside the verdict of the jury and judgment entered thereon) for the reason that in the Watts case there was no showing that the publication of the court calendar was an official one, required by law.
The trial court did not err therefore in overruling the plaintiff's demurrer to the defendant's motion and in sustaining said motion to set aside said verdict and judgment.
W. Harvey Armistead, contra.
Ed C. Bouvette, Paul T. O'Connor, Kelley Quillian, for plaintiff in error.
Friday May 22 22:43 EDT

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