Allanson v. Vincent

216 Ga. 112 (1960)

114 S.E.2d 851

ALLANSON v. VINCENT, Guardian.

20882.

Supreme Court of Georgia.

Argued May 10, 1960.

Decided June 9, 1960.

Walter O. Allanson, for plaintiff in error.

Scott Walters, Jr., contra.

DUCKWORTH, Chief Justice.

The trial judge having set aside his judgment of dismissal of the petition for failure to amend within 20 days, allowed in the order granting time to amend during the term, the court having stated in its order on the rule nisi of defendant's oral motion to dismiss that the failure to amend was due to "justifiable neglect," this court can not hold that the lower court abused its discretion in setting aside the judgment dismissing the petition and reinstating the case, particularly where no brief of evidence of the hearing is in the record showing the "justifiable neglect" cited as the reason for setting aside the final judgment. See Bowen v. Wyeth, 119 Ga. 687 (1, 2) (46 S. E. 823); Deen v. Baxley State Bank, 192 Ga. 300, 303 (15 S. E. 2d 194); Cofer v. Maxwell, 201 Ga. 846, 848 (41 S. E. 2d 420); Lawson v. Haygood, 202 Ga. 501 (3) (43 S. E. 2d 649); Shivers v. Shivers, 206 Ga. 552 (57 S. E. 2d 660). And no ruling in Cahoon v. Wills, 179 Ga. 195, 196 (175 S. E. 563), is in conflict with the above ruling or the rulings in the above-cited cases. Accordingly, the court did not err in setting its final judgment *113 aside during the term, and reinstating the case, and in overruling the oral motion to dismiss for failure to amend within the time specified and extending the time for amendment further. Code (Ann.) § 81-1001 (Ga. L. 1946, pp. 761, 775; 1952, pp. 243-245; 1953, Nov. Sess., p. 82).

Judgment affirmed. All the Justices concur.