Bass v. Doughty
| Decision Date | 27 January 1909 |
| Docket Number | 1,517. |
| Citation | 63 S.E. 516,5 Ga.App. 458 |
| Parties | BASS v. DOUGHTY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where there is a conflict between the language of an act of the General Assembly as it is enrolled in the office of the Secretary of State and as it appears in the volume published by the public printer, the former controls.
[Ed Note.-For other cases, see Statutes, Dec. Dig. § 37 [*]]
Under section 36 of the act approved November 27, 1900 (Acts 1900 p. 112), creating the city court of Bainbridge, defenses should be filed on the first day of the first term; but the judge has a discretion to allow a plea not filed until after that day, but filed during the term and before the rendition of judgment, if the interests of justice require it, and the failure to file the plea on the first day was not caused by laches or negligence.
[Ed Note.-For other cases, see Courts, Dec. Dig. § 189. [*]]
Error from City Court of Bainbridge; W. M. Harrell, Judge.
Action by A. S. Doughty against C. A. Bass. Judgment for plaintiff, and defendant brings error. Affirmed.
M. E. O'Neal, for plaintiff in error.
John R. Wilson, for defendant in error.
1. Section 36 of the act creating the city court of Bainbridge as approved by the Governor and enrolled and filed in the office of the Secretary of State provides: "The first term of said court to which a case is brought shall be the appearance term and the next term thereafter shall be the judgment or trial term and all the laws, rules and practices in the superior courts with reference to the terms thereof shall apply to the city court of Bainbridge, unless otherwise provided in this act: Provided, that in cases in which no defense or plea is filed on the first day of the first term, or such defense or plea shall be stricken by the court, a judgment may be rendered by the court or verdict taken as the case may require, for the plaintiff, on any succeeding day of said term upon the call of said case in open court." Laws 1900, p. 112. In the official volume of the Georgia Laws for 1900, published by the state printer, the word "first" is omitted before the word "day" in that portion of the proviso to this section which refers to the day of the term on which defenses should be filed. The enrolled original in the office of the Secretary of State controls, and not the printed copy. Epstin v. Levenson, 79 Ga. 718, 4 S.E. 328.
2. The "first day of the first term," as used in this section of the act creating the city court of Bainbridge, clearly refers to the day on which by law the court is required to meet, and not to some subsequent day on which the judge through an adjournment or otherwise begins the actual trial of cases. Therefore the question narrows itself to a determination of whether the judge of that court has the discretion to allow a meritorious defense filed after the first day of the term, but prior to the rendition of the final judgment. It is contended by the defendant in error that the decision of the Supreme Court in Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 41 S.E. 54, controls the question, and that the judge has no such discretion. The case just cited related to the act regulating the practice in the city court of Atlanta. In that act the language is mandatory: "The defendants shall file their defenses on or before the first day." In the present act the requirement that the defenses shall be filed on the first day of the first term is not directly stated and arises by inference and construction only. If they are not filed on that day, "a judgment may be rendered" subsequently at any time during the first term. Punctuality is a virtue of high order, but truth and justice are even more exalted. Hence the demand for punctuality in pleading should not be so strict as to prevent inquiry into truth and to deny justice where the delinquency is reasonably excusable. Therefore, while the law makes requirements of punctuality in pleadings, it also usually makes provision for relieving against the penalties imposed for a lack of this virtue when the interests of truth and justice require it. This may be said to be the general policy of the law. Our statutes for opening defaults well indicate this policy. Therefore, if the language used by the Legislature in a special act is ambiguous or doubtful in meaning, the ambiguity and doubt will be resolved against harshness and unjustice and in favor of letting the truth be known. Ordinarily, therefore, the court has a discretion in opening defaults where the defendant tenders a meritorious plea, and shows that he permitted the default through what the courts call excusable neglect.
The provision of the act before us is that, if the defense is not filed on the first day of the first term, the judge "may" thereafter at the same...
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