
    Frey v. Phillips.
   Atkinson, J.

A motion was made to set aside a verdict and judgment and reinstate the case on the docket for trial. The ground of the motion was, that the case had been called up for trial out of its order during the absence of the defendant and without notice to him, and the plaintiff’s attorney was allowed to take a verdict notwithstanding the defendant had filed a plea setting up certain payments for which he was entitled to credit on plaintiff’s demand. It was alleged, that the defendant had made other payments for which he was entitled to credit, and which he would have pleaded by amendment at the trial had he known the case would be called; that the judge had made up a published calendar of eases to be tried at the term, and the case was not included among them; that the case was called not only out of its order on the regular docket of the court, and when it was not on the trial calendar, but during the “criminal week,” when, according to the custom, no civil business was ever tried unless expressly announced; and that movant was misled by the published calendar, and was absent from the court, not to avoid a trial, but because he thought the case was not in order for trial. The respondent did not demur or answer. The judge overruled the motion, and the movant excepted. Held:

April 14, 1916.

Motion to set aside verdict and judgment. Before Judge Patterson. Cobb superior court. May 5, 1915.

J. B. Mozley and H. B. Moss, for plaintiff in error.

Owens Johnson, contra.

1. The burden of proving the grounds of the motion to set aside the verdict was on the movant; and the failure of the respondent to file an answer did not relieve the movant of the necessity of submitting evidence in support of his motion.

2. The recital in the bill of exceptions that “upon said hearing movant put in his motion, the amendment to his motion, and in support of his said motion introduced the following affidavit and receipt attached,” is not to be construed as a statement that the motion and amended motion'' were introduced as evidence.

3. The only evidence which the bill of exceptions shows was introduced at the trial was the receipt and affidavit mentioned in the preceding headnote. These did not purport to apply to all the material allegations of the motion, and were insufficient to sustain the grounds of the motion.

4. The judgment refusing to set aside the verdict will not be reversed.

Judgment affirmed.

All the Justices concur.  