Milam v. Busey

Gardner, P. J. A trial judge has the power, in the exercise of his sound discretion, during the term of court at which a judgment is rendered, to revise, revoke, or vacate it for the purpose of promoting justice. See Lawson v. Haygood, 202 Ga. 501 (3) (43 S. [90] E. 2d 649), Tyler v. Eubanks, 207 Ga. 46 (60 S. E. 2d 130), and Bandy v. Smith, 211 Ga. 192 (84 S. E. 2d 449). In Deen v. Baxley State Bank, 192 Ga. 300, 303 (15 S. E. 2d 194) this court said: “A motion to set aside and vacate a judgment can not be determined by- any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review, unless abused.” See also Union Compress Co. v. A. Leffler & Son, 122 Ga. 640, 642 (50 S. E. 483). The plaintiff must show due diligence to protect his interest. See Beddingfield v. Old National Bank &c. Co., 175 Ga. 172 (165 S. E. 61). So far correct principles of law have been enunciated, but have they any bearing on the instant case? It is our opinion that the law is that a judgment may be set aside only where a party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud, or accident, or the act of the adverse party, not mixed with fraud or negligence on his part. See Code § 37-220, and Johnson v. Johnson, 210 Ga. 795 (82 S. E. 2d 831). The only allegation of the plaintiff in the instant case is that he had no notice of the suit against him. This court has already decided that the plaintiff was properly served. See Busey v. Milam, 95 Ga. App. 198 (97 S. E. 2d 533). The plaintiff has not pleaded the basis of a legal right to have the judgment set aside. See Bank of Doerun v. Fain, 148 Ga. 799 (98 S. E. 467). In addition to the decision of this court when this case was here before, there are many other decisions of our appellate courts to the same effect. See Venable v. Long Realty Co., 46 Ga. App. 803, 804 (169 S. E. 322), Lucas v. Wilson, 67 Ga. 356 (1), Moye v. Walker, 96 Ga. 769 (1, 3) (22 S. E. 276), and Lanier v. Nunnally & Co., 128 Ga. 358 (57 S. E. 689). The court did not err in sustaining the demurrer and in dismissing the petition. Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs in the judgment.