
    Griffin v. Brewer.
    April 8, 1895.
    By two Justices.
    Brought forward from the last term.
    Motion to set aside judgment. Before Judge Janes. Polk superior court. April 6, 1894.
    Irwin & Bunn, for plaintiff
   Lumpkin, J.

Where a case, apparently in default, was regularly called for trial, and the defendant stated, in effect, that he thought he had filed a plea, but after search he was unable to find it and did not move to establish a copy or ask leave to file another plea in lieu of the alleged original, and thereupon a judgment by default was rendered against him in the presence and hearing of himself and his counsel, and without objection from either, it was an improper exercise of discretion, even during the same term, to set aside the judgment and reinstate the case upon a motion filed by the defendant, alleging that a plea was in fact filed by him before the judgment was rendered, and setting forth its contents, although the defendant verified this motion by his oath; it also appearing by the undisputed evidence introduced by the plaintiff in the case on the hearing of this motion, and from the recitals in the bill of exceptions, that the judgment had been originally rendered without objection, and under the circumstances first above set forth. Judgment reversed.  