Albany Pine Prod.S Co v. Hercules Mfg. Co

• Decision Date: 14 June 1905
• Parties: ALBANY PINE PRODUCTS CO. v. HERCULES MFG. CO.
• Court: Georgia Supreme Court

123 Ga. 270

51 S.E. 297

ALBANY PINE PRODUCTS CO.

v.HERCULES MFG. CO.

Supreme Court of Georgia.

June 14, 1905.

Default Judgment—Correction of Entry.

Where it appears that an entry was made by the judge on the docket of "in default, " and it also appears that on the same day the judge defaced the entry by passing his pen through it, in the absence of proof to the contrary such mutilated entry will be treated as the correction of an inadvertence, and not as an "in default" judgment.

(Syllabus by the Court.)

Error from City Court of Albany; D. F. Crosland, Judge.

Action by the Hercules Manufacturing Company against the Albany Pine Products Company. Judgment for plaintiff, and defendant brings error. Reversed.

The Hercules Manufacturing Company brought suit in the city court of Albany against the Albany Pine Products Company upon an open account. The process was returnable to the May term, 1904, and was duly served upon the defendant. At the trial term the plaintiff made a written motion to strike the defendant's plea upon the following grounds: "First. Said plea was not filed at the first term of said court, as required by sectior. 5052 of the Code of 1895. That said plea was not filed in said case until after said court had fully and completely adjourned. Second. Defendants then sought to file said plea after said court had adjourned as above stated, by an order of said court (R. Hobbs), which now appears on the foot or bottom of said plea, authorizing the filing thereof. Third. Plaintiffs aver that said order admitting said plea to be filed as aforesaid is a nullity; that the said court had no legal right or authority to pass such an order admitting and authorizing said plea to be filed at said time, and thereby opening said case, which had gone by in default." Upon the hearing of the motion to strike the plea, the deputy clerk testified as follows: "The May term, 1904, of said court convened at about 9 o'clock a. m. on the 9th day of May, 1904, and was in session for only about two hours, during which time the appearance docket was called (his honor Richard Hobbs, now deceased, then judge of said court, presiding), and at about 11 o'clock a. m. of the same day the court took a recess to the 23d day of May, 1904; said Hobbs, the then judge of said court, announcing from the bench that the court would take a recess until the 23d day of May, 1904. That during the afternoon of said day (May 9, 1904) he was handed the plea in said case, with the following order, in the handwriting of the then judge of said court, at the bottom of the same: 'Ordered filed May 9th, 1904. Richard Hobbs, Judge C. C. A., '—which he filed in office on said 9th day of May, 1904, and that at the time said plea and order were filed the costs which had accrued in said case were not paid, and have not yet been paid. That the docket...