Aiken v. Wolfe , 76 Ga. 816 ( 1886 )

Blandeord, Justice.

The defendant in error, in the county court of Jasper county, sued the plaintiff in error and obtained a judgment; whereupon Aiken appealed to the superior court. At the April term, 1885, the appeal was dismissed. Aiken, during the term of the court, made application to have the judgment dismissing the appeal set aside. The court granted an order nisi, requiring Wolfe to show cause at the next October term of the court why said judgment should not be set aside and said case re-instated, and directed that Wolfe should be served with the rule. At the October term, 1885, the counsel for Wolfe moved to discharge the rule and dismiss the motion of Aiken, because no service had been made on Wolfe as required by the rule, which motion the court granted, and Aiken excepted, and assigns error on said exception.

A motion to set aside a judgment is directed to the legal discretion of the court. In this case, the court entertained the motion and granted an order, directed to Wolfe, requiring Mm to show cause why the motion of Aiken should not be granted, but directed that service of the rule should be made on Wolfe, and upon this condition being complied with, the court would hear and determine tho motion of Aiken. Aiken failed to serve Wolfe, and the court, for that reason, dismissed the motion. There was no abuse of discretion on the part of the court in dismissing the motion.

Judgment affirmed.