Cannon v. John B. Daniel Inc.

Beck, P. J. (After stating the foregoing' facts.) We are of the opinion that the court erred in sustaining the general demurrer to the petition, and in dismissing the case. The petition shows that attorney Field was employed for the purpose of "filing suit, keeping up with its status on the calendar of the court, looking-after hearings upon motions or demurrers, and informing petitioner and his other counsel when they were needed at the trial;” that both petitioner and his other counsel, who resided in a different county from that in which the suit was pending, relied upon Field to keep them informed as to the pleadings, motions, and hearing in the case. When the case was called for trial Field was seriously sick — too sick to give any attention whatever to [527] business, however important, and a few days after that he die'd, on the 31st of January, 1921. It was further alleged that prior to the hearing of the demurrer on January 27th the firm of attorneys of record for the defendant were notified by the stenographer of Mr. Field that the latter was sick in the hospital and unable to try any of his cases, and that a member of the firm with whom the stenographer talked agreed to check and continue alL the cases of Mr. Field in which they were of counsel on the opposite side during the time of his illness. Having employed Field as his leading counsel and for the specific purposes set forth, both petitioner and Field’s associate counsel, Norton, had the right to rely upon Field for advice and notice of the progress of the cause in its preliminary stages; and as the cause was set down for a hearing on the demurrer on January 27, 1921, and Field could not then be present, the case should have been continued under the agreement. In the answer as it is stated in the brief of counsel for defendant in error this allegation is positively denied; but the allegation is to be taken as true upon demurrer. Usually, where it appears generally that there is an associate counsel, and leading counsel becomes ill, as in the present case, then it would be the duty of the associate counsel either to try the case or have it continued, or, if the motion for continuance is overruled, to notify his client, and, in ease of an adverse verdict or judgment, to make a motion for new trial, or to carry the case to the appellate court by appropriate bill of exceptions. But, under the terms of the agreement and understanding between the client and counsel in this case, the leading counsel was to discharge certain specified duties; and if associate counsel was not present to give direction to the case upon the hearing of the demurrer, he could not be held liable by his client for negligence in the performance of his duty. We think the case is brought within the rule stated in section 5965 of Park’s Annotated Code, which makes provision for setting aside judgments by a court of equity. In the case of Howell v. Ware, 133 Ga. 674 (66 S. E. 884), it was said: “In this State it has been held that £ a motion to vacate a judgment by default, on the ground that defendant was sick when it was rendered, and could not put in his plea, was properly overruled, no reason being shown why the plea was not filed before the trial term.’ Cannov. Harrold, Johnson & Co., 61 Ga. 158. . . It will be seen that [528] where sickness is held to be a sufficient ground for setting aside a judgment, it is classified with accident and misfortune, as to which our code recognizes equitable jurisdiction as applying, unless the remedy be denied on account of laches. Clifton v. Livor, 24 Ga. 91; McCall v. Miller, 120 Ga. 262, 266 (47 S. E. 920).” See also Robinson v. Carmichael, 134 Ga. 654 (68 S. E. 582). In the case of Sims v. Sims, 135 Ga. 439 (69 S. E. 545), it is said: “Where it is sought to set aside a judgment.by reason of the absence of the defendant and his attorney on account of the serious illness of the attorney, who had agreed to notify the defendant to appear, but who was prevented from so doing- by such illness, it should appear that the attorney was unable to notify the court of his condition. In the present case this did not appear, but, on the contrary, the attorney, while unable to appear, was able to notify the court of his condition, and made a bona fide effort to do so, which notice, however, appears never to have reached the court. We are constrained, therefore, to hold that the absence of the defendant and his counsel under the circumstances stated was not sufficient to authorize the setting aside of the judgment. The facts of this case ar'e unlike those in Howell v. Ware & Harper, 133 Ga. 674 (66 S. E. 884), and Robinson v. Carmichael, 134 Ga. 654 (66 S. E. 582), wherein it was shown that counsel for the defendant was not only unable to appear, but was so ill that he was unable to notify the court of his condition.” In the instant case it will be noted that the leading counsel was entirely too sick to notify associate counsel or to give any attention to business of any kind. The present case is, in fact, a strong one .upon which to base an appeal to the principle embodied in the section of the code first cited. It follows from what is said above that the court erred in sustaining the demurrer and dismissing the petition. Judgment reversed. All the Justices concur.