Beacham v. Kea

• Decision Date: 12 August 1903
• Parties: BEACHAM v. KEA.
• Court: Georgia Supreme Court

45 S.E. 398

118 Ga. 406

BEACHAM v. KEA.

Supreme Court of Georgia

August 12, 1903

Syllabus by the Court.

1. A continuance, granted at the instance of the defendant when he still has time to file an answer, does not extend that time so as to permit the filing of an answer after the expiration of the time regularly allowed by law.

Error from City Court of Dublin; J. S. Adams, Judge.

Action by W. D. Kea against L. C. Beacham. Judgment for plaintiff and defendant brings error. Affirmed.

T. L Griner and Jas. K. Hines, for plaintiff in error.

T. V Sanders, for defendant in error.

SIMMONS C.J.

Suit on an account for $75 was filed in the city court of Dublin, returnable to the August, 1902, monthly term. On the call of the case the defendant appeared, and asked that the case be continued until the return to the state of the attorney whom he wished to employ; such attorney being absent for providential reasons, and having leave of absence from the court until September 15th. Without objection the case was continued, no plea or answer being filed by the defendant. At the next September term the defendant's plea was filed without objection. Upon demand of the plaintiff for a jury, the case was transferred to the next quarterly term, December, 1902. At that term, upon motion of plaintiff's attorney, the plea was stricken upon the ground that it had been filed after the August term, and therefore had not been filed in time. Judgment was then entered up for the plaintiff. To the striking of his plea the defendant excepted.

Under the act establishing the court, this case was returnable to the August term. Acts 1900, p. 117. The case was also ripe for trial at that term, and when a continuance was granted this postponed the trial, but did not extend the time for filing defenses. In this court "the same rules of procedure, service, pleadings, and practice shall govern as for the time being obtain in the superior court, except as otherwise provided." There is no provision in the act for opening defaults, or for any extension of the time for answering, but the superior court practice as to defaults could not be made to apply to such a court. See Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 41 S.E 54. The defendant should certainly file his defense before his case is tried, though the trial take place on the first day of the first term. Where the case is not tried, though triable, at the first...