Brucker v. O&connor
| Decision Date | 01 April 1902 |
| Citation | 41 S.E. 245,115 Ga. 95 |
| Parties | BRUCKER v. O'CONNOR. |
| Court | Georgia Supreme Court |
DEFAULT JUDGMENT—OPENING—COSTS ON APPEAL—PAUPER AFFIDAVIT. 1. Where a person, duly served, fails to answer a suit against him, and a judgment of default has been properly rendered against him, it is an abuse of discretion for the trial judge, at the next term, to open the default, on the ground that the defendant, having ascertained that the action was for negligence in caring for certain real estate in which he had no interest, thought that the.plaintiff, on finding this out, would not demand damages from the defendant.
2. "A pauper affidavit, filed for the purpose of relieving the plaintiff in error and his counsel from the payment of the costs accruing in this court, must be entitled in the cause referred to in the bill of exceptions, or otherwise show upon its face that it is connected therewith."
(Syllabus by the Court.)
Error from city court of Richmond; W. P. Eve, Judge.
Action by L. M. Brucker, by her next friend, against E. J. O'Connor. Judgment for defendant, and plaintiff brings error. Reversed.
J. C. C. Black and C. E. Dunbar, for plaintiff in error.
M. P. Carroll, for defendant in error.
SIMMONS, C. J. Lillian Marie Brucker, by her next friend, brought an action for damages against O'Connor. In her petition she alleged that a certain house belonging to the defendant had been left open, so that children could enter therein and play; that plaintiff, with other children, entered the house, and, in an attempt to raise a window, had her hand injured. Other allegations were made as to damages, etc. This petition was filed and duly served upon the defendant. At the appearance term he failed and neglected to make answer, and, at the call of the case at that term, a judgment of default was entered against him. At the next term he moved to open the default, under section 5072 of the Civil Code. His motion was predicated upon the following facts: Defendant ascertained, upon reading the petition, that it was a suit against him for personal injuries to plaintiff by reason of alleged negligence upon defendant's part in not properly caring for certain real estate, which was not owned by defendant, and in which he had no interest. Defendant, being unfamiliar with legal process, supposed plaintiff had made a mistake, and, upon learning the facts, would not demand damages from him, as he was in no wise responsible for her injuries. He had a meritorious defense, etc. A rule nisi was issued requiring the plaintiff to show cause why the default should not be opened. Upon hearing the motion and the answer thereto, the judge opened the default, and allowed the defendant to plead. On the trial a nonsuit was awarded. Plaintiff, in her bill of exceptions, excepted to the judgment opening the default and to the granting of the nonsuit.
1. Section 5072 of the Civil Code declares that: "At the trial term the judge in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing...
To continue reading
Request your trial
-
Bowen v. Savoy
...ed. 2019). In one of this Court's earliest decisions to construe the predecessor to the Default Judgment Statute, Brucker v. O'Connor , 115 Ga. 95, 41 S.E. 245 (1902), we addressed the excusable neglect ground and defined its proper scope: " ‘Excusable neglect’ does not mean gross negligenc......
-
American Liberty Ins. Co. v. Sanders
...We apprehend the true rule for the exercise of the discretion conferred by section 5072 (now § 81A-155) to be laid down in Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245: 'While this section gives to the judge a broad discretion, it does not mean that he can act arbitrarily, but that he may e......
-
Sherman v. Stephens
...The judge, under the power so given, cannot "act arbitrarily, " but must "exercise a sound and legal discretion." Brucker v. O'Connor, 115 Ga. 95 (1), 41 S. E. 245. Before the opening of a default judgment can be ordered, "the movant must allege and prove some good reason in law why he had ......
-
Atwood v. Northern Pacific Railway Co.
... ... (Holzeman v. Henneberry, 11 Idaho 428, 83 P. 497; ... Valley State Bank v. Post Falls etc. Co., 29 Idaho ... 587, 161 P. 242; Brucker v. O'Connor, 115 Ga ... 95, 41 S.E. 245; Deering Harvester Co. v. Thompson, ... 116 Ga. 388, 42 S.E. 772; Skinner v. Terry, 107 N.C. 103, 12 ... ...