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Cancellation, etc. Before Judge Guess. DeKalb Superior Court. November 19, 1954.
WYATT, Presiding Justice.
The judgment of the court below setting aside the verdict of the jury and the judgment entered thereon was error.
Mrs. Mary F. Buchanan (plaintiff in error) filed her petition against Ralph L. Nash and Ed Downing on October 27, 1950, seeking to recover damages and to obtain a temporary restraining order and injunction, and to determine a coterminous line between the parties. The petition was amended on November 4, 1950, and again on September 9, 1954. The case was heard at the September term of DeKalb Superior Court, the jury returned its verdict on September 13, 1954, and judgment thereon was entered on September 14, 1954, the case being in default since no defensive pleadings had been filed. A fi. fa. was issued on September 20, 1954.
On October 8, 1954, the defendants in error here filed a motion asking that the default be opened, and that the defendants be permitted to file defensive pleadings, and, by amendment, that the verdict and judgment in the case be set aside and the fi. fa. canceled. The plaintiff filed to the motion a general demurrer, which was duly overruled. Judgment on the motion was entered, setting aside the verdict and judgment, canceling the fi. fa. and permitting the defendants to file defensive pleadings. The plaintiff in error excepted to this judgment and assigns the same as error.
The parties to this bill of exceptions argue, in their briefs in this court, primarily the question of whether or not the amendment of September, 1954, served to open the default judgment in the case, and whether the motion to open the default was sufficient. This argument overlooks the controlling question in the case. Code 110-404 and the cases relating to the opening of a default have no application in a case where there has been a jury verdict and judgment entered thereon. See O'Connell Bros. v. Freeman, Keiler & Co., 118 Ga. 831 (45 S. E. 668), and cases there cited.
The defendants in error contend that the case is controlled by Code 81-1312 relating to amendments, and that they are entitled to a reasonable time in which to file their plea and answer. This argument likewise overlooks the fact that there has been a jury verdict in the case and a final judgment entered thereon.
The controlling question in this case is whether or not the judgment of the court below setting aside the verdict of the jury and the judgment entered thereon was error. So long as the verdict and judgment stand, the case is at an end, and no default may be opened and no defensive pleadings filed, amendment or no amendment.
The instant case clearly comes within the rules stated above. The judgment is based upon a jury verdict, and before it can be set aside, the verdict of the jury must be set aside, and this can be done only by a proper motion for new trial or a motion which is in substance a motion for new trial. The motion here involved is not a motion for new trial, does not purport to be a motion for new trial, can not be construed to be a motion for new trial, and does not comply with the rules of law relating to motions for new trial. Nor is it even contended that this is a bill in equity seeking to set aside a verdict and judgment for fraud or other equitable reason.
It follows, therefore, that the judgment of the court below setting aside the judgment and verdict previously rendered was error.
CANDLER, Justice, concurring specially. I concur in the judgment of reversal, but for a reason different from the one stated in the opinion. The movants did not allege that they had a meritorious defense; this being so, the amended motion was fatally defective and the general demurrer which the plaintiff interposed thereto should have been sustained by the trial judge. A court will not do the vain and useless act of vacating a verdict and setting aside a judgment when the same result will in all probability be reached on another trial. Phillips v. Taber, 83 Ga. 565 (10 S. E. 270); Johnson v. Driver, 108 Ga. 595 (34 S. E. 158); Roberts v. Moore, 113 Ga. 170 (38 S. E. 402); Jewell v. Martin, 121 Ga. 325 (48 S. E. 529); Dorsey v. Griffin, 173 Ga. 802 (161 S. E. 601). Since the amended motion was demurrable and should have been dismissed on general demurrer, all subsequent proceedings taken in the case are nugatory.
C. W. Buchanan, for plaintiff in error.
ARGUED JANUARY 12, 13, 1955 -- DECIDED FEBRUARY 14, 1955.
Saturday May 23 02:49 EDT

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