Deering Harvester Co v. Thompson

• Decision Date: 30 October 1902
• Parties: DEERING HARVESTER CO. v. THOMPSON.
• Court: Georgia Supreme Court

42 S.E. 772

116 Ga. 418

DEERING HARVESTER CO.

v.THOMPSON.

Supreme Court of Georgia.

Oct. 30, 1902.

DEFAULT—OPENING—FAILURE TO FILE ANSWER—REASONABLE EXCUSE.

1. A default will not be opened at the instance of a defendant unless he shows a "reasonable excuse" for failing to file an answer at the first term; that is, such an excuse as will justify the exercise in his favor of a sound legal discretion.

¶ 1. See Judgment, vol. 30, Cent. Dig. § 270.

2. An order passed by the superior court in which a petition is filed, allowing the defendant until a date after the adjournment of the appearance term within which to file an answer, will not, when the plaintiff did not consent to the passage of such order, afford him such an excuse as is referred to in the preceding note. The court had no power to pass such an order, and the defendant was chargeable with knowledge of its want of authority.

(Syllabus by the Court.)

Error from superior court, Madison county; H. M. Holden, Judge.

Action by the Deering Harvester Company against W. H. Thompson. From an order opening a default judgment against defendant, plaintiff brings error. Reversed.

Z. B. Rogers and J. F. L. Bond, for plaintiff in error.

John E. Gordon and D. W. Meadow, for defendant in error.

COBB, J. The Deering Harvester Company brought suit against Thompson in the superior court. The defendant did not file any plea or answer at the appearance term, but at that term an order was passed allowing him 60 days within which to file a plea. This order was taken without the consent of the plaintiff or its attorneys. The defendant filed a plea within 60 days after the passage of the order, but after the adjournment of the appearance term. At the trial term the court, upon motion of the plaintiff, struck the defendant's plea upon the ground that it was not filed in time. The defendant thereupon moved to open the default, giving as his reason for so doing that he acted under an order of the court, which was held to be illegal for want of authority in the court to pass it The presiding judge, Hon. Paul E. Seabrook, passed an order opening the default, and allowing the defendant to file his plea. To this ruling the plaintiff ex-eepted pendente lite. At a subsequent term of the court the case came on to be tried before Judge Holden, and upon motion of the defendant a nonsuit was awarded. The case is here upon a bill of exceptions assigning error upon the ruling of Judge Seabrook opening the default, and upon the granting of a nonsuit by Judge Holden.

A defendant who has been served with a petition and process is required to appear at the term to which the process is returnable and make his defense in writing. Civ. Code, § 5052. When the defendant fails to appear at the first term, the case is in default. Civ. Code, § 5077. The court has no authority to extend the time for filing a plea in any case. Where the defendant has filed a plea in due time, and objection is made to such plea by the plaintiff on the call of the appearance docket, the court may, on good cause shown, allow a reasonable time, in...