The opinion
On Rehearing.
Counsel for the movant on rehearing contend that this court, in holding that the movant offered no evidence and made no showing at the time that the trial court finally overruled the plea for stay under the Federal Soldiers’ and Sailors’ Civil Relief Act, overlooked the record of the testimony and the stipulation between the plaintiff and the defendant at the time of the trial on June 1, 1953, which was specified in paragraph 13 of the bill of exceptions, and is as follows: “The brief of evidence with order *436 and entries thereon filed and approved on the 3rd day of September, 1953.” Set forth in the motion for rehearing is what purports to be excerpts from the testimony of the movant and a stipulation of counsel. The testimony thus set forth relates to the military service of the movant, and the stipulation thus set forth is to the effect that the same situation, insofar as military service of the movant is concerned, existed at the time of trial as it did on two other occasions when the plea under the Soldiers’ and Sailors’ Civil Relief Act was heard and interlocutory orders were passed thereon. We have carefully examined all .the testimony of the movant in the brief of evidence as specified by paragraph 13 of the bill of exceptions. Such testimony as is set forth in the motion for rehearing is not contained in the brief of evidence of the trial of this case upon which this appeal is based. Nor does the transcript of the record anywhere disclose the stipulation set forth in the motion to rehear. The existence of such a stipulation appears, as is pointed out in the motion, from the statement of facts in the brief of counsel for the defendant in error.
This court assumed, in order to pass on the merits of this plea, that the order of the trial court on January 28, 1953, which was not appealed from, was not the law of the case to the effect that the plea ivas not well founded. While that order was favorable to the movant in allowing the stay, the same was conditioned upon his paying the agreed alimony pending further hearing, and this condition was not met. By the express provisions of the order, failure to meet its terms resulted in its denial. It was therefore an adverse order to the movant by reason of his failure to meet it. We will, however, continue to assume, without conceding, that the order of January 28, which was not complied with by the movant, does not constitute the law of the case. For the purpose of this decision, we will also assume, without conceding, that the record of the trial upon which this appeal is based also shows that the same conditions exist as existed at the time of the two previous hearings. With this in mind, we have re-examined Parker v. Parker, 207 Ga. 588 ( 63 S. E. 2d 366 ), which it is contended by the movant was overlooked by this court. In that case no facts were developed beyond the plea itself, which affirmatively showed that the movant was at the time actively engaged in military combat in Korea. As such, of course, he could not haA^e been expected to be present at the trial or to contribute *437 anything whatever to the defense of his case, and from such fact, there being nothing to the contrary, it was mandatory that the application be granted. Here, on the contrary, the movant resided in the county where the suit was brought. His work was in the environs of the same city. It did not take all of his time. He was able to be present and testify, not only at the trial, but at two other hearings. The case was stayed under his plea for over 18 months. He was able to secure depositions from witnesses in California during that time (the inaccessibility of these witnesses being one of his grounds of application). So far as the record shows, he made no application to the military authorities for leave of absence in order to obtain additional time to prepare his defense in this case. He refused to comply with the terms of the last order of the court granting a conditional stay, nor did he appeal therefrom or show why compliance with the terms of the order was impossible.
On the other hand, in Gates v. Gates, 197 Ga. 11 , it was held that where the applicant for a stay voluntarily offers evidence to show an impairment in his ability to defend the action, and this evidence, when subjected to legal tests, fails to show impairment, the trial judge is authorized to deny a stay. The Gates case was much stronger on its facts than the case here, in that there the defendant was assigned to active military duty at the time in North Carolina and was also apparently a nonresident of this State. For the obvious reasons set forth in our original opinion, the trial court did not abuse its discretion in overruling the plea of stay.