Dabney v. Benteen

Broyles, C. J. 1. “Until the end of the term at which rendered, judgments are in the ‘breast of the court,5 and may be set aside or modified at the judge’s discretion; but to set aside a final judgment based on a verdict, except for defects appearing on the face of the record, the verdict must also be set aside; and the verdict is not ‘within the breast of the court5 in the sense that the judgment is.55 Ga. Ry. & Electric Co. v. Hamer, 1 Ga. App. 673 (58 S. E. 54), and citations. 2. To set aside a verdict and judgment, even where the movant alleges that the verdict was obtained by fraud, it must be shown, among other things, that the movant has a meritorious defense. Roberts v. Roberts, 150 Ga. 757 (1) (105 S. E. 448), and citations. It is obvious that the burden is on the movant to show by a preponderamce of the evidence that he has a meritorious defense, and that where he fails to carry the burden the judge has no discretion in the matter except to deny the motion. 3. In the instant case, conceding (but not deciding) that the demurrer to the motion to set aside the verdict and judgment was properly overruled, upon the hearing of the motion the movant failed to show by a preponderance of the evidence that he had a meritorious defense. On the contrary, the overwhelming weight of the evidence was against his defense. Under these facts, and the- above-stated rulings, the court erred in sustaining the motion and setting aside the verdict and judgment. Judgment reversed. Luke and Bloodworth, JJ., concur. Lowndes Calhoun, for plaintiff. Helen Douglas, for defendant.