Opinion
45710.
ARGUED OCTOBER 6, 1970.
DECIDED DECEMBER 3, 1970.
Motion to set aside. DeKalb State Court. Before Judge Mitchell.
Cobb, Cobb Bridges, Chandler Raymond Bridges, for appellant.
Murphy, McFarland Turoff, John L. Turoff, for appellees.
This is a duly certified appeal from the grant of a new trial. The order does not specify the reason for the grant, but the sole ground asserted in the motion is that the defendants were not afforded a day in court, having been prevented by providential cause. The transcript of the hearing affirmatively discloses that counsel for the defendants was in his office the day the case was heard, ready, willing, and able to participate in the trial, but not knowing the case was on the calendar, did not attend, and did not notify his clients, who also failed to attend. It further appears that he had previously been absent from his office for about a week, ill with influenza, and that the court calendar as published in a newspaper during the period of his illness was placed on his desk, but that it had been removed from his desk before he returned to the office. During the week that he was absent from his office he did participate in the trial of another case. Held:
We reverse. The mere fact that counsel and his clients had no knowledge that the case was on the calendar and set for trial is not in itself sufficient to support the grant of a new trial. The application, although addressed to the sound legal discretion of the trial judge ( Code § 70-208) must be supported by a showing of some meritorious explanation of the absence, as well as a meritorious defense. See Caylor v. Wheat, 210 Ga. 429 ( 80 S.E.2d 688); Brawner v. Wilkins, 114 Ga. App. 263 ( 150 S.E.2d 721); Ohlen v. McCoy, 25 Ga. App. 528 ( 103 S.E. 803). For recent appeals involving the unexcused absence of counsel, see Jordan v. Plott, 121 Ga. App. 727 ( 175 S.E.2d 148); Carver v. Cranford, 122 Ga. App. 100 ( 176 S.E.2d 272).
Judgment reversed. Eberhardt and Pannell, JJ., concur.