Johnson v. Sikes , 22 Ga. App. 46 ( 1918 )

Wade, C. J.

1. The motion to set aside the verdict and judgment in this case is substantially based upon an alleged misunderstanding between the defendant and his counsel, in consequence of which no defense was interposed. “Where a failure to file a defense was due to the gross negligence of the defendant or of his counsel, it is not error to refuse to set aside a' default judgment and reinstate a casé, even though motion be made at the samé term. Athens Leather Manufacturing Co. v. Myers, 98 Ga. 396, 397 (25 S. E. 503). Neither is the failure of a defendant to appear and plead on account of an apparent misunderstanding between himself 'find his counsel, whereby no appearance whatever was entered, a sufficient ground for setting aside a default judgment. Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).” Colclough v. Walker, 19 Ga. App, 23 (90 S. E. 742).

2. The motion to set aside alleges that “the petitioner was ready for trial of this ease, and was ready, as he believes and avers, to show to the court and jury that the account sued on by the plaintiff was not just, and that the deceased testator did not owe the whole or any part thereof; and-the petitioner now stands ready to plead and "make defense to the said suit, and will be ready to go to trial instanter upon the call of the case for trial, should trial be allowed.” Nowhere is thé exact nature of the defense to be interposed set forth or indicated in the motion to set aside the judgment, and not only is no meritorious defense set out in the motion itself, but it is even impossible" to determine therefrom how and for what reason the defendant expects “to show to the court and jury that the account sued upon by the plaintiff was not "just, and that the deceased testator did not .owe the whole or any part thereof.” In other words, nothing more than a general assertion, that the defendant “was ready, as he believes and avers,” to show that he was not indebted as alleged, appears from the motion itself. Such a motion must show that the movant “has a good and meritorious defense to the action, not merely by so alleging, but by setting forth fully the facts which constitute the proposed defense, except in cases where the judgment is absolutely void, when no defense need be shown.” Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312). See also Henderson v. Swift Fertilizer Works, 16 Ga. App. 448 (85 S. E. 613), and cases there cited; Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (3) (91 S. E. 444). The statement of the movant that he had a valid defense, without more, would amount to nothing but a conclusion on his part, upon which the court would be unable to act. Morris Fertilizer Co. v. Smith, 18 Ga. App. 368 (2) (89 S. E. 493).

3. The judge of the superior court therefore erred in refusing to sustain the demurrer to the motion to set aside the verdict and judgment in this case and in declining to dismiss said motion on demurrer.

Judgment reversed.

Jenkins and Luke, JJ., concur.