
    34832.
    KIMSEY v. DAVIS et al.
    
    Decided January 14, 1954.
    
      
      Anthony A. May, J. M. Forrester, for plaintiff in error.
    
      Smith & Gardner, contra.
   Quillian, J.

The court did not err in overruling the demurrer to the petition to set aside the judgment or in setting aside the judgment. Whether the judge was authorized to set aside the judgment for another or other reasons, he did have the right and authority at the same term at which the judgment sought to be set aside was rendered to set aside the judgment, for the reason that it was error for the court to dismiss the answer of the defendants on the ground that the defendants were not present or represented at court on the call of the case and to treat the case as being in default and render a judgment without the verdict of a jury. That a defendant is not present in court or not represented by counsel is not a ground for dismissing an answer, whether the answer is good or bad. It does not appear from the record whether there was a demurrer to the answer or not. If there was, it had to be heard and passed on before the trial of the case could continue. If there was not, the plaintiff was required to make out his case before a jury by evidence or admissions of the defendants and have a jury pass upon the case or make a verdict on direction by the court. The demurrer to the petition to set aside was not meritorious on the ground that the defendants did not show that they had a good defense. Their defense was already timely filed and the issues in the case were already made when the answer was stricken and judgment rendered, and the defendants were entitled to have these issues decided by a trial of the main case and not on the petition to set aside the judgment.

The court did not err in overruling the demurrer to the petition to set aside the judgment or in setting aside the judgment and reinstating the case.

Judgment affirmed.

Sutton, C. J., and Felton, J., concur.  