I think that the court erred in dismissing the petition for certiorari. I recognize the general rule which no doubt actuated the judge of the Municipal Court of Macon and the superior court judge, that is, that a party is not entitled to the continuance or postponement of a case unless it is made to appear to the court by proof under oath that the party *Page 302 is prevented from being present by providential cause or that such proof could not be obtained prior to the motion for continuance or postponement by the exercise of due diligence by the party and her counsel. However, in this case two facts are alleged which preclude the application of that principle. We might call it a new application of the doctrine of last clear chance. Assuming that Mrs. Stanley's attorney was not sufficiently diligent in obtaining proof under oath that his client was providentially detained, still, it would seem that she could and would have been able to reach the courthouse, even after the trial of her case had begun, in time to have presented her side of the case. One fact alleged is that the communication from the petitioner's attorney's secretary was not reported by the deputy clerk to the judge. No reflection is intended upon this gentleman, but his judgment in the premises, if the facts alleged are true, was bad and amounted to a providential obstacle to the defendant in the case on trial. Mrs. Stanley, under the facts alleged, was evidently exercising all the diligence at her command, and the law will not hold her to the exercise of perfect judgment when what she did should have been sufficient. I am certain that the estimable trial judge would have afforded Mrs. Stanley the opportunity to come from her home to the court if he had known that she was as diligent as she alleges she was in trying to find out whether or not to do so. The other fact alleged is that the trial judge refused to let Mrs. Stanley's attorney telephone her from the judge's office, as a result of which she alleges she would have come to court. I think that proof of either one of these theories would require the reversal of the denial of a new trial.
I am authorized to state that Gardner, J., concurs in this dissent.