McMillan v. Kelly , 201 Ga. 692 ( 1946 )

Candler, Justice.

(After stating the foregoing facts.) No error having been assigned on the judgment of November 30, 1945, as modified on December 3, 1945, within the time allowed by law, such judgment became the law of the case, and the error now assigned can not be considered.

The exception to the order refusing to rescind the judgment of November 30, 1945, is without merit, since it shows no sufficient reason why the judgment should be vacated and set aside. The motion was to strike the judge’s entry so that the docket would speak the truth by showing that the case was dismissed in 1935. In 64 C. J. 1255, § 1102, it is said: “It is improper to make a finding which is not warranted by the pleadings, evidence, or stipulated facts, and which is wholly at variance with the claims of either party.” The'judgment here sought to be set aside is not wholly at variance either with the pleadings or with the evidence submitted both in support of and against the motion, and the judge did not abuse his discretion in refusing to set it aside. However, direction is given that the entry be now stricken from the docket, if such has not already been done.

Judgment affirmed with direction.

All the Justices concur.