Bowman v. Winn
| Decision Date | 02 July 1915 |
| Docket Number | 5862. |
| Citation | 85 S.E. 787,16 Ga.App. 546 |
| Parties | BOWMAN v. WINN, SHERIFF. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A motion to open a default judgment is addressed to the sound legal discretion of the judge, and this discretion cannot be said to have been abused when, after a hearing upon the only valid ground of the motion, upon conflicting testimony, he adjudges that that ground of the motion is not sustained by the evidence.
A defendant in an action of trover, who has failed to file an issuable defense, is restricted, in his cross-examination of the witnesses, to an inquiry as to the value of the property and cannot contest the plaintiff's title or right of possession, as the case may be, by testimony, for the reason that he has failed to file any plea which denies the plaintiff's title or right of possession.
In an action of trover, brought by a sheriff or other levying officer as nominal plaintiff, for the use of another, the nominal plaintiff's ownership of the chattel is sufficiently established if it be shown that the title to the property is in fact in the usee, for whose benefit the action was instituted.
A judgment directing a verdict will not be reversed, when the finding directed was demanded by the evidence.
Error from City Court of Houston; A. C. Riley, Judge.
Action by G. W. Winn, Sheriff, for the use of A. J. Evans, against E. W. Bowman. Judgment for plaintiff, and defendant brings error. Affirmed.
R. N Holtzclaw, of Perry, for plaintiff in error.
C. L Shepard, of Ft. Valley, for defendant in error.
Winn, sheriff, for the use of A. J. Evans, instituted an action in trover against Bowman, to recover certain mules. The plaintiff elected to take a money verdict, and at the conclusion of the evidence the court directed a verdict for the plaintiff. There is no complaint that the amount of the verdict is not authorized by the evidence, but it is insisted: (1) That the court erred in refusing to open the default and to permit the defendant, who had filed no answer at the appearance term, to plead; (2) that the court erred in refusing to permit the defendant to cross-examine Evans, the real plaintiff, as to any fact, except the value of the mules sued for; and (3) that the court erred in directing a verdict in favor of the plaintiff, because the plaintiff failed to show that the mules belonged to Winn, sheriff, for the use of Evans, and, on the contrary, it was shown by undisputed evidence that they were the property of A. J. Evans.
1. We do not think the court erred in refusing to open the default. Section 5656 of the Civil Code declares that:
In this case the defendant set up, as reasons for opening the default: (1) That he was ignorant that the statute required a plea to be filed at the appearance term; and (2) that the defendant was told by Winn, sheriff, that the defendant had a good title to the mules. It is evident that the trial judge correctly sustained a demurrer to these two grounds of the motion to open the default, for neither ignorance of the law nor the advice of a sheriff would excuse the defendant for failure to file his defense in time. In the third ground of the motion the defendant averred that the plaintiff's attorney informed him, in response to an inquiry, that "there was nothing to it, and it was all off," and that by these remarks he was misled and made to believe the case would be dismissed or discontinued, and that therefore it was not necessary for him to do anything further or even to employ an attorney. The plaintiff traversed the grounds of the motion to open the default, and, upon the issue thus formed, the court heard evidence. The defendant testified in effect to the statements alleged by him to have been made by the plaintiff's counsel, and that attorney testified that he had never made any such statements to the defendant or to any one else; that he at one time told the defendant that he thought the defendant "had him," but that he was going to do all he could to recover the mules. He testified that he made a proposition to give the defendant his fee, amounting to $50 or $60, in another case, if he would restore the mules to Evans, and that the defendant replied with a counter proposition which he (the attorney) would not even consider. According to the testimony of this attorney, he never sought to advise the defendant, and did not mislead him. If the attorney made the statement which the defendant attributed to him, it would have constituted a legal fraud, which might have required the court to open the default under the provisions of section 5656, supra, authorizing the opening of a default, where a proper case has been made. However, the credibility of the witnesses was a matter for the court, and, it being established to the satisfaction of the trial court that the averments of that ground of the motion to open the default which set up the fraud were disproved, it cannot be said that the discretion with which the court was clothed was abused.
It is true this discretion should be liberally construed in promotion of truth and...
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