Revels v. Kilgo

ON MOTION FOR REHEARING.

Hines, J.

The motion for rehearing is based upon the ground that this court overlooked the recital, in the judgment of the court overruling the demurrer to the first motion to set aside the judgment in this ease, that the hearing of said motion “came on to be heard in vacation at this time.” This court did not overlook this fact. The first motion to set aside this judgment was presented to the judge in vacation. He passed an order calling upon the claimant to show cause at the next August term, 1921, of Haber-sham superior court, why the judgment in the claim case should not be set aside. Thus the rule nisi was made returnable in term time, and the hearing of the motion was thus set to be heard in term time. The proceeding was thus made a term proceeding. At the August term, 1921, the parties agreed that this motion could be heard in vacation. It can properly be presumed that all necessary and proper steps, including an order setting the hearing down in vacation, were taken at the August term of the court, on the principle that where a court of general jurisdiction has rendered a judgment, it is presumed, until the contrary is affirmatively shown, that the court had full jurisdiction in the premises and had before it all facts necessary to make the judgment valid and binding. Langmade v. Hamilton, 89 Ga. 441 (15 S. E. 535). If an order had been taken in term time, setting down the hearing of the demurrer to this motion in vacation, the judge would clearly have had jurisdiction to hear and dispose of the demurrer in vacation. Such an order would, in effect, have kept the term, relatively to that particular case, open until such demurrer should have been decided. Herz v. Frank & Adler, 104 Ga. 638 (30 S. E. 797). Now no such order taken in term time is necessary to give the judge jurisdiction to hear such motion or demurrer thereto in vacation. Civil -Code (1910), § 4852. So when the parties to *42this litigation agreed in term time to have the judge hear the demurrer to this motion in vacation, such agreement would have the same effect as an order taken in term time for such purpose; and the effect of such agreement would be to extend the term as to the hearing of the demurrer to this motion until the same was heard and determined. It follows that the judgment sustaining the demurrer to the petition was one in term time.

Rehearing denied.

Bussell, C. J.

Without deciding whether there can be such a thing as a second motion for rehearing, I am of the opinion that beyond the merits of the present motion for rehearing there is no provision of law to grant an amendment to a motion for rehearing or to grant a second motion for rehearing upon the ground that something essential was omitted by counsel, through inadvertence or otherwise, in the presentation of the original motion for rehearing.