Peoples Finance & Thrift Co. v. Phoenix Assurance Co.

The appellant in this action presents his case on an unsupported theory as to both the law and the facts. We might be disposed to grant the relief prayed for were it not for the broad discretion given the trial court in the matter of granting new trials.

Appellant in Ms opening statement treats the judgment vacated by the trial court, from which order vacating the judgment and granting a new trial this appeal is taken, as a judgment by default. There is nothing in the record to show that a default was ever entered or a judgment by default rendered.

On the contrary, the record shows an answer on file, a setting of the cause for trial upon due notice to defendants' counsel of record and a trial had before the court without a jury, in which evidence oral and documentary was introduced by the plaintiff, and judgment in plaintiff’s favor given thereon.

Appellant attacks the proceedings for a new trial on the ground that the court was without jurisdiction to entertain the same for the alleged reason that the notice of intention to move for a new trial was not served or filed until nearly sixty days after entry of judgment.

Since it does not appear that notice of entry of judgment…