Sherman v. Stephens

Bell, J. ' (After stating the foregoing facts.) It is contended in the brief of the attorneys for the plaintiff in error that the original motion to vacate did not contain enough to amend by, but no such objection appears in the record, nor was it urged that the grounds of the amendment were not presented in time, unless the attack upon the granting ■ of the motion is inclusive of the question of time. It seems that the verified’motion was, without objection, assumed on the hearing to be true. Only the one proposition is, therefore, presented: Does the motion as amended show any legally sufficient reason or meritorious ground for vacating the judgment? The correctness or incorrectness of the allowance of the amendment and also of the granting of the motion will be settled by an answer to this single question. Section 9 of the act of August 21, 1906 (Ga. L. 1906, p. 161), provides as follows: “ That where a petition shall have been filed as much ás twenty days and service perfected as much as fifteen days prior to any regular or quarterly term of the court, — 515 — and the defendant shall fail, on or before the first day of such term, to file any answer or plea, or any other sufficient defense, the court shall grant judgment immediately, without intervention of a jury, in favor of the plaintiff; but in the discretion of the court such default judgment may be opened during the same term and the defendant allowed to plead.” It is provided in section 19 “ That the general laws of this State in regard to the commencement of suits in the superior courts, defenses, set-offs, affidavits of illegality, arbitration, examination -of parties to suits or witnesses by interrogatories or under subpoena, witnesses and their attendance, continuance or any other matters of judicial nature within the jurisdiction of said city court shall be applicable to said city court.” Whatever power the judge of the city court of Blakely may exercise in regard to a matter of this sort is derived from the act establishing the court (Daniel v. Nixon, 21 Ga. App. 206, 13 S. E. 1013; Florida Central R. Co. v. Luke, 11 Ga. App. 290, 75 S. E. 270); but the discretion which is granted by the above-quoted provisions is to be exercised upon general legal principles. The judge, under the power so given, can not “ act arbitrarily,” but must “ exercise a sound and legal discretion.” Brucker v. O’Connor, 115 Ga. 95 (41 S. E. 245). Before the opening of a default judgment can be ordered, “the movant must allege and prove some good- reason in law why he had failed to make his defense at the time required by the act.” Florida Central R. Co. v. Luke, supra. While it is not so expressly declared in the act, we think that the authority which the above-quoted provisions confer upon the judge of the city court of Blakely is not narrower or more limited than that which is conferred by section 5656 of the Civil Code upon the judges of the superior courts in regard to the opening of defaults at the trial term, and that the decisions in reference to the extent of the discretionary powers conferred in this section may be applicable to this case. We speak, however, only of analogy; and although it has been held that this section provides only for the opening of defaults or default entries, and not for the vacation of final judgments (Adams v. Overland-Madison Co., 27 Ga. App. 531 (2), 109 S. E. 413), the analogy yet obtains, for the reason that the authority given to the judge by the act in — 516 — question' extends to default judgments and not merely to entries. It was held in Phillips v. Taber, 83 Ga. 565 (4) (10 S. E. 270), that to set aside a judgment for the absence of the defendant from providential cause, he must show, among other things, not only that he was absent for such cause, but that he was unable to notify the court of his condition; but the motion in that case was to ’set aside a judgment which had been entered upon a verdict by a jury. Also, the subsequent decisions applying this rule (Johnson v. Driver, 108 Ga. 595, 34 S. E. 158; Glover v. Dimmock, 119 Ga. 696, 46 S. E. 824; McCall v. Miller, 120 Ga. 262, 47 S. E. 920; Ayer v. James, 120 Ga. 578 (2), 48 S. E. 154; Sims v. Sims, 135 Ga. 439 (2), 69 S. E. 545; Bryant v. Elberton & Eastern Railway Co., 20 Ga. App. 586, 93 S. E. 219), were each upon a proceeding independently instituted or a motion to vacate after verdict, and not at a time or stage of the controversy when the discretion of the judge could be invoked; certainly not when his discretion, if existing at all, was as plenary and broad as in the case of opening a default. We do not think that the eases just referred to are applicable here, for the reason that the motion or petition in each of them came at a time when, in order to maintain it, it was incumbent upon the movant or petitioner to establish an absolute right to the grant of the relief either in equity or at law; and the motion or petition was not addressed to the discretionary power of the court. See, in this connection, Howell v. Ware, 133 Ga. 674 (66 S. E. 884); Robinson v. Carmichael, 134 Ga. 654 (68 S. E. 582). “Until the end of the term at which rendered, judgments are ‘in the breast of the court/ and may be set aside or modified at the judge’s discretion.” Georgia Ry. &c. Co. v. Hamer, 1 Ga. App. 673 (58 S. E. 54). It was further said in that case: A “ verdict is not ‘ within the breast of the court ’ in the sense that the judgment is.” As to the case at bar, it is expressly provided that the judge may in his discretion set aside a default judgment at any time during the term. Although the hearing and the granting of the motion occurred at a subsequent term, we are of the opinion.that the filing of the motion with the order nisi thereon assigning the matter for a hearing reserved in the court, until the motion was finally disposed of, the authority which it had at the time it assumed jurisdiction of the proceeding. This was during — 517 — the term of the judgment sought to be vacated. “ Generally where proceedings to amend, open, or vacate a judgment or decree are commenced during the term at which it was rendered, the jurisdiction of the court over it for this purpose may be continued for a subsequent term, and the relief sought be granted at such term. 17 Am. & Eng. Ene. L. 815.” Van Dyke v. Van Dyke, 120 Ga. 984 (1), 987 (48 S. E. 380). The sole question for decision is whether upon the facts as presented in the amendment to the motion, was there an abuse of discretion in the granting of the motion. We would that we might deduce from the numerous cases some fixed rule by which to determine questions of this character, but the task is legally impossible, for it has been said, “A motion to set aside and vacate a judgment and reinstate a ease cannot be determined by any fixed rule, but depends upon the circumstances of the case.” Storey v. Weaver, 66 Ga. 296 (1); Clark v. Ramsey, 138 Ga. 726, 728 (75 S. E. 1128). The same may be also said of a motion to vacate a default judgment. But we will venture the following observations: Before any decision can be followed as a precedent, it must be noticed at what stage of the controversy the motion or petition to vacate was made, and whether the proceeding was addressed to judicial discretion or one that depended upon the establishment of a right. There is the broadest distinction between the two. Again, within the class of decisions where the motions were addressed to judicial discretion, we may see on the one side where a motion was denied upon a seemingly strong showing, while remotely upon the other the motion was granted for a slight, though reasonable and meritorious, cause. The wide divergence apparently existing in the authorities is not the result or the evidence of a confusion of the law, but indicates merely the breadth of the field of the discretionary power which is vested in the judges in matters of this kind. A decision affirming a refusal of such a motion may illustrate only how far a court may go, without error, in denial of it; and another affirming the grant of it, may show merely how liberally the discretion may be exercised without violating the rule that some meritorious reason for the relief must be shown. The action of the trial court within the very wide scope of the field referred to would be affirmed, — 518 — whether upon a given state of facts it granted or denied the opening of the judgment. It follows that a decision which may be good as a precedent for the affirmance of the refusal of a motion may not be authority for the reversal of the grant of a motion, upon the same or a similar state of facts. Upon examining the authorities with these things in mind, it is easier to determine whether any particular decision may be useful as a precedent, and we also find that the many decisions with their varying facts and results form in the main a consistent and harmonious whole. The case comes up with the presumption that the judge did not abuse his discretion in passing the order, and this presumption must prevail unless a contrary ruling was demanded as a matter of law. Brawner v. Maddox, 1 Ga. App. 332 (5) (58 S. E. 278). The movant is not to be barred because he may have been guilty of some neglect, provided that neglect is shown “ excusable.” Civil Code (1910), § 5656. A wilful disregard of the processes of the court would not be countenanced, but where there is a reasonable excuse for a failure to answer, the default judgment .may be opened. Brucker v. O’Connor, supra. Like the rule of Phillips v. Taber, supra, §§ 4585 and 5965, under each of which any neglect by the movant is fatal, have no application to this kind of case. “A motion to set aside a judgment, made during the term at which it was rendered, is addressed to the sound discretion of the court, and such' discretion will not be controlled by a court of review, unless manifestly abused.” Tate v. Little, 141 Ga. 799 (82 S. E. 129). “Whether a judgment by default will be set aside or not, is a question addressed to the sound discretion of the court below, and this court will not; as a general rule, interfere, unless such discretion has been grossly abused.” Lambert v. Smith, 57 Ga. 25. As was said by this court, speaking through Judge Bussell, in Butler v. Siriclcland-Tillman Hardware Go., 15 Ga. App. 193 (82 S. E. 815), the authority to open a default is not confined to providential cause or excusable neglect, but “it is expressly provided that a default may be opened ‘ where the judge, from all the facts, majr determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.5” We cannot hold in this case that the judge “grossly” or “manifestly” abused his discretion. In Brawner v. Maddox, supra, the facts were as follows: “that J. E. Maddox, one of the — 519 — members of the firm [defendants], had charge of this particular kind of business; that when he was served, the copies were laid upon his desk, and he fully intended to file proper pleadings by way of defense; that at that time J. E. Maddox was sick, barely able to be at his office or attend to business, and he forgot the papers lying on his desk; that important matters of business called him to New York, and during his absence the papers became misplaced and there was nothing to remind him of them on his return; that defendants attorney was also sick at that time, for which reason defendants failed to file proper demurrer, pleas and answers; that J. J. Maddox, the senior member of the firm was also in bad health and unable to attend to any business.” 1 Ga. App. 335-6. The opening of the judgment was affirmed. The showing there was not stronger than that of the case at bar. See also Thompson v. Kelsey, 8 Ga. App. 23 (1). While the judge, if he had seen fit to do so, could possibly have required that the movant should measure with the ruling of Phillips v. Taber, supra, yet without deciding that he might have exacted so much, we are sure that since his order was one of discretion, he was not compelled to apply so rigid a rule. We cannot say that it appears absolutely in the motion that the movant had employed an attorney upon whom would have rested the duty of appearance, before the rendering of the judgment. Iiis allegation that as soon as he was able he went to Blakely “to arrange with his attorney ” to file a defense, in the light of the further allegation that “up to that time he had been unable to see an attorney or to make any arrangements with him about filing his defense,” does not demand such a conclusion. “ His attorney,” in view of all the facts alleged, could have been reasonably interpreted as meaning the attorney who was ultimately engaged, and who occupied the relation at the time of the use of this phrase. If it should seem that judgments may lose their security if they may be vacated upon a showing such as appears in this record, we have only to remember that presumably their sanctity and security will be duly preserved by just and upright judges, who will exercise their discretion in favor of opening them only when the interests of justice so require. Ground 4 of the motion for a new trial excepts to the overruling of the objections of the plaintiffs to the evidence of J. C. — 520 — McCullers in support of the plea of 'the defendant that McCullers was the principal, and that the defendant was only a surety and had been discharged by reason of certain transactions between the witness and the deceased payee. It was' objected that the witness would be incompetent to testify against the executors, the plaintiffs in the suit, the same as if he were a party. The defendant’s attorney then announced: “We expect to show that McCullers is not a party to the suit, and to show that he has been discharged in bankruptcy.” The court ruled that the question was whether or not McCullers was interested in the result of the suit, and overruled the objection. During the further examination of Mc-Cullers he testified that he “had been in bankruptcy,” and that he had just been notified by his attorney that he, the attorney, had the discharge in bankruptcy of the witness in his possession. Ground 5 of the motion for a new trial excepts to the overruling of an objection that these facts could not be shown by parol. Under no supposition could the evidence of the witness be in favor of himself, whether he had been discharged m bankruptcy or not. If it were true that he was the principal and the defendant only the surety, the liability of the witness could not be affected by any of the facts disclosed by his evidence. If the signatory parties were all principals, the witness was testifying against his interest instead of in favor of it. While the objection to the parol evidence in reference to the witness’s discharge in bankruptcy was abstractly sound (Harvard v. Davis, 145 Ga. 580 (5), 89 S. E. 740; Williams v. First National Bank of Mitten, 21 Ga. App. 182, 94 S. E. 73; McDougald v. Chattanooga Medicine Co., 10 Ga. App. 653 (2), 73 S. E. 1089), the witness was competent independently of his bankruptcy or his discharge. No error, therefore, appears in either of these grounds of the motion. Hayden v. McKnight, 45 Ga. 147; Freeman v. Bigham, 65 Ga. 580 (3); Flournoy & Epping v. Wooten, 71 Ga. 168 (1), (a); Reed v. Baldwin, 102 Ga. 80 (29 S. E. 140); Lyon v. Pignatel, 146 Ga. 272 (91 S. E. 53, 2 A. L. R. 1475); Patterson v. Bank of Lenox, 8 Ga. App. 492 (2) (70 S. E. 77); Massee v. Parrott, 29 Ga. App. 109 (2) (114 S. E. 225). See also note in 2 A. L. R. 1477. Counsel for plaintiffs in error question the correctness of the decision in Reed v. Baldwin, supra, and suggest that we certify the question to the Supreme Court; but we are satisfied with its — 521 — soundness and would not feel justified in adopting the suggestion. Ground 6 of the motion for a new trial sets out in full the evidence of McCullers by which it was sought by the defendant to establish his plea of release from liability, on account of the alleged extension of the maturity of the note. The assignment of error in this ground was as follows: “ After the witness had testified as above set forth, counsel for the plaintiffs made a motion to exclude the witness’s said testimony for the reasons then urged before the court, that his testimony was susceptible of two constructions, his recollection not being clear, (1st) that in the fall of 1913, or before January 1st, he entered into a contract with Hilton to work with him the following year for the sum of $50 per month, and in the fall of 1913 contracted for the year 1914; yet (3d) the matter as to extending the time of payment of the note was mentioned on May 1st, 1913, and he continued to work for the balance of that year. If McCullers agreed to work from January 1st, 1913, to the end of that year, and then, in May, Hilton agreed to extend the time of payment of that note on the agreement of McCullers to continue to work for the rest of 1913, that would be a nude pact, no consideration for it, because if McCullers entered into a binding contract to work for the year 1913, there would be no consideration for his continuing to work during 1913. If McCullers contracted, when the note became due, to work for the year 1914 at $50, then that agreement would be within the statute of frauds, and that sort of an agreement could not be taken out of the statute by performance, in whole or in part. The court overruled said motion to exclude said testimony of the said witness, and movants assign error on said ruling, for all of the reasons urged at the time by their counsel, and especially upon the ground that the testimony of the witness was so confused, indefinite, uncertain, evasive, and self-contradictory as not to show any definite agreement respecting the extension of the time of payment of the note upon any valid consideration, or to authorize the jury to find in favor of the defendant upon his plea that the time for the payment of the note had been extended without his consent by the payee.” The assignment that the evidence “ was so confused, indefinite, uncertain, evasive and self contradictory ” as to be of no probative value cannot be considered, for the reason that the motion does not show that such objections were — 522 — urged at the time the testimony was offered or at all during the trial. But the question sought thereby to be raised is properly presented later on in the motion, and will be dealt with there when reached. If the evidence was susceptible only of the first construction stated in the objection, there is no doubt that it ought to have been excluded, for if the contract had already been made for the performance of the services, agreeing again to the same effect at the time of the maturity of the note would not furnish consideration for the extension. Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Harrell v. Kulz, 22 Ga. App. 235 (95 S. E. 717). But the plaintiffs assert that another construction could have been placed upon the evidence, — namely, that “McCullers contracted, when the note became due, to work for the year 1914 at $50 ” per month. Taking the plaintiffs ’ exception as made, and therefore assuming that the testimony authorized this inference, we concur in the suggestion that the agreement would have been subject to the statute of frauds, since the employment of McCullers was not as overseer, and the services were not to be performed within a year from the making of the agreement. Thus far the alleged surety would not have been released, even though having no knowledge of the agreement. But we cannot hold with the contention that “that sort of an agreement could not be taken out of the statute by performance.” If the payee actually agreed to extend the maturity of the note for the period of one year in consideration of the promise of McCullers to work for him during the year 1914, at a stipulated wage, and if McCullers completely executed the promise, the transaction would be removed from the operation of the statute, and would furnish a consideration for the agreement to extend, if the extension was actually granted as agreed. McCullers testified positively that he did work for Hilton during the year 1914 at $50 per month, and it appears that no action whatever was1 taken upon the note for more than twelve months from its original maturity. Such á secret agreement between the principal and the payee, even though originally within the statute of frauds, if afterwards completely performed, would be binding, and the surety would be released. — 523 — We find no authority for holding that a contract for services “not to be performed within one year from the making thereof” may not, as any other contract, be removed from the operation of the statute of frauds if the execution is full and complete. There is no ruling to the contrary in Bentley v. Smith, 3 Ga. App. 242 (3) (59 S. E. 720), Huggins v. State, 126 Ga. 639 (2) (55 S. E. 492), or Willis v. Fields, 132 Ga. 242 (2) (63 S. E. 828). It is noticed that in Willis v. Fields, supra, the ruling was limited to a case where the agreement “ did not become binding by complete performance or otherwise.” “While a verbal agreement that is not to be performed within one year is not binding upon the promisor, under the statute of frauds, yet if the promisee performs some act essential to the contract, which results in loss to him and in benefit to the promisor, his part performance takes the contract out of the operation of the statute.” Bagwell v. Milam, 9 .Ga. App. 315 (4) (71 S. E. 684); Williams v. Garrison, 21 Ga. App. 44 (2) (93 S. E. 510); Civil Code (1910), §§ 3222 (5), 3223. “ Testimony admissible under one theory of the case as presented by the pleadings and the proof is not to be rejected because, under another theory likewise raised, it would not be admissible.” Capital City Brick Co. v. Atlanta Ice & Coal Co., 5 Ga. App. 436 (3) (63 S. E. 562). We conclude that no error is disclosed in this ground of the motion. Ground 7 excepts to a charge of the court submitting to the jury the issue.raised by the plea setting up the defendant’s discharge by reason of the alleged extension of the maturity of the note, in support of which was offered the evidence referred to in the preceding division of this opinion. It is insisted that the charge was not warranted by any evidence in the case. It is contended that the testimony of McCullers was too “ confused, indefinite, uncertain, evasive, and self-contradictory ” to establish any definite agreement respecting the extension of the time of the payment of the note, or to authorize the jury to find in favor of the defendant upon this plea. While the evidence is exceedingly indefinite as to the time of the making of the agreement from which it is alleged the discharge resulted, and. might be legitimately criticised before a jury upon all the grounds stated in this as — 524 — signment, we cannot say for these reasons that it had no probative value, as a matter of law. The jury in the discharge of their exclusive function, from some portions of the evidence, would have been warranted in drawing inferences sufficiently definite, applicable to the plea. Twice was the plea, without objection, read to the witness (once by the attorney for the plaintiffs), with the question whether it was true, and the answer in each instance was affirmative. There were other portions of his evidence sufficiently definite, notwithstanding as a whole it may have been ever so incoherent or inconsistent. While the Supreme Court has said that “ when a witness testifies to facts incoherently or inconsistently, that circumstance goes to his credit, and if his testimony be very incoherent or inconsistent, it should be considered with great caution ” (Evans v. Lipscomb, 31 Ga. 71 (2) ), this rule relates to the province of the jury, and this court cannot say that the testimony of one not a party has no value merely because it is self-contradictory. The rule is different as to a party to the case testifying in his own behalf. Ray v. Green, 113 Ga. 920 (2) (39 S. E. 470); Meinhard v. DeLoach, 19 Ga. App. 323, 327 (91 S. E. 446). The jury may believe a part of the testimony of a witness who is not a party and reject another part (Sappington v. Bell, 115 Ga. 856, 42 S. E. 233), and “it was for the jury to determine whether the testimony of the witness was so vague, indefinite, and uncertain as to be worthless, or whether the testimony- — -though contradictory in some respects- — -possessed some degree of probative value.” O’Brien v. Ellarbee, 14 Ga. App. 333 (5) (80 S. E. 864). “ The credibility of a witness is a matter to be determined by the jury under proper instructions from the Court.” Civil Code (1910), § 5883. See also Holcombe v. State, 5 Ga. App. 47 (6) (62 S. E. 647); Marshall v. Woodbury Banking Co., 8 Ga. App. 221 (68 S. E. 957); Borders v. City of Macon, 18 Ga. App. 333 (2) (89 S. E. 451). This court is without jurisdiction to adjudge that testimony is worthless because of the “witness’s manner of testifying.” Civil Code (1910), § 5732. The charge cannot be held erroneous on the ground that it was not warranted by the evidence. .Other exceptions to this charge are dealt with respectively in headnotes 5 and 6, which do -not require elaboration. However, — 525 — if evidence tending to establish an agreement unenforceable under the statute of frauds would at the same time demand the conclusion that if the agreement was made it was fully executed, so as in the same breath to remove the operation of the statute, it is doubtful if an instruction upon the statute would be proper. In ground 8 of the motion for a new trial exception is taken to an instruction to the jury in relation to the plea of discharge of the defendant as surety by reason of the failure of the payee to record a mortgage alleged to have been given as security for the note; and in ground 9 it is complained that the court committed error in charging the jury in relation to.the defense that the defendant had been discharged by reason of the alleged release by the payee, for a consideration, of a cosurety, Eugene Martin. It is assigned that each of these charges was erroneous as being unwarranted by the evidence. Since we think that these exceptions should be sustained, it is unnecessary to refer to certain other objections to these charges. The evidence in no sense tended to sustain the plea of discharge for failure to record the mortgage, for the reason that it indisputably appears that the mortgage was never accepted; and irrespective of whether, since the mortgage was not attested, the creditor should ordinarily have procured its acknowledgment in form for record (but see Bacon v. Hanesley, 19 Ga. App. 69 (2) (90 S. E. 1033), the payee, hot accepting it, assumed no duty in regard to its record. If its rejection or non-acceptance was without the consent of the defendant as a surety, this would constitute an element of an entirely different defense. Whether, if the essentials of such a defense were fully established, the surety should be discharged altogether, or only to the extent of the value of the property, is not presented for decision. We think the other charge was erroneous for the same reason. There was no evidence tending to establish that Eugene Martin was ever released by the payee, if he ever became bound. The matter of consideration is nowhere referred to; nor is it shown that there was even an attempt at such release. The testimony tended to show only that he signed the note as surety upon the condition that he would not be liable unless others signed the note in the same capacity, and that this was made known to the payee before the credit was extended. The charge that the defendant — 526 — would Be released if the payee compounded with and released Martin was unwarranted by the evidence. We are of the opinion that the instructions, in each instance, were calculated to mislead and confuse the' jury, and tended to prejudice the plaintiffs rights. Since the jury are exclusively the judges of the credibility of the witnesses, we cannot say that the verdict was without any evidence to support it; and solely for the errors in the charges last referred to the overruling of the motion for a new trial is reversed. No question was raised as to the admissibility of parol evidence to prove that the defendant was a surety upon the note importing prima facie that he was a principal. Judgment reversed. Jenlcins, P. J., and Stephens, J., concur.