dissenting. 1. The court did not err in overruling the demurrers of the defendant. These were general demurrers, and could not reach structural defects which were amendable, though such defects might have been subject to attack by special demurrers. A motion to set aside a judgment and reinstate a case can not be determined by any fixed rule, but depends upon the circumstances of each case. Storey v. Weaver, 66 Ga. 296. A judgment may be set aside for defendant’s absence from providential cause, provided it is shown that the defendant was absent for such cause and unable to notify the court of his condition, and that he had a meritorious defense, and such other facts as would render it improbable or doubtful whether the plaintiff could recover. Phillips v. Taber, 83 Ga. 566 (4) (10 S. E. 270).
2. The court properly postponed consideration of the plea in abatement, for the reason that this dilatory, plea raised issues of fact which the court properly held to be matters to be submitted to a jury in a final trial of the case Upon its merits.
3. The evidence authorized a finding upon the part of the judge (passing, by consent, upon issues of fact as well as of law) that the judge presiding in the prior trial was disqualified; and therefore the trial judge was authorized to find as a matter of law that the verdict of the jury and the judgment of the court in the former adjudication were voidable, and that the same should be set aside, and that the affidavit of illegality should be reinstated.
4. The question of the disqualification of the judge who presided in the ease in which the judgment now sought to be set aside was rendered being the paramount and controlling issue in the proceeding brought to set such judgment aside, the trial judge properly considered this issue; and having determined that the judge was disqualified, this decision' rendered unnecessary any consideration or adjudication of other questions in the ease.
5. (a) The ruling to the effect that the credibility of the witnesses is a matter addressed solely to the jury necessarily applies to a judge who is acting both as court and jury by consent of the parties. Under this well-settled rule, the evidence before the judge, although in conflict, fully authorized the court to find that a named attorney was not of counsel for the plaintiff in the trial of a former issue raised by affidavit of illegality, and also to find that’ the said attorney did not know of the disqualification of the judge who presided in the former trial.
(b) The discretion of the trial judge as to the credibility of the witnesses when he is sitting as a trior of facts will not be interfered with, unless manifestly abused. And such discretion can never be said *284to be abused merely because the evidence which was rejected by the judge would have authorized a different finding provided the testimony rejected had been preferred or had been held to be more credible.
No. 3146. March 3, 1923.0. A judge of the superior court who is related to either of the parties in a case within the fourth degree of consanguinity or affinity is disqualified to preside therein. Short v. Mathis, 101 Ga. 287 (28 S. E. 918). The rule is not altered by the fact that he is equally related to both parties. “ The statute disqualifies a judicial officer where his relation to a party at interest is within the fourth degree by consanguinity or affinity, and makes no exception on account of being related equally or otherwise to a party on the opposite side of the controversy.” That a judicial officer is related within the prohibited degrees to parties on both sides of a controversy does not relieve the disqualification. Tucker v. Roberts, 151 Ga. 753-762 (108 S. E. 222).
J. W. Quincey and B. A. Hendricks, for plaintiffs in error. J. Z. Jackson, contra.