Brawner v. Maddox
| Decision Date | 01 March 1907 |
| Docket Number | 27. |
| Parties | BRAWNER v. MADDOX. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The right given Civ. Code 1895, § 5529, is one the exercise of which is optional with the plaintiff in error. It is cumulative of the right to take the course pointed out in section 5528. The plaintiff in error is not required to prefer its use to the method laid down in section 5528.
The brief of so much of the evidence as is "material to a clear understanding of the errors complained of," which is incorporated in the bill of exceptions in this case, is sufficient. Enough evidence admitted to be true is specified in the bill of exceptions and appears in the record to make clear the errors complained of.
Even if this were not the case, this court has no power to dismiss the writ of error on that ground. Civ. Code 1895, §§ 5534, 5569. We therefore refuse to dismiss the writ of error.
The entry "Def'lt" on the judge's docket is a sufficient entry of the fact that no defense has been filed in the case.
(a) The entry of the judge on his docket is in the nature of a memorandum for his use and guidance. No set formality is required for the judgment mentioned in section 5077 (judgment by default), except that "the court shall enter default on the docket, which shall be considered a judgment by default, without a formal entry thereof."
(b) The word "default" may be represented by an intelligible abbreviation.
The opening of a default at a trial term, after the defendant conforms with the conditions imposed by section 5072, is a matter expressly within the discretion of the trial judge.
(a) That power conferred on him is ample and to be used in the exercise of a sound legal discretion.
(b) We are not prepared to say that this discretion was abused in this case, and therefore hold that no error was committed in opening the default.
[Ed Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 265.]
There was no error in sustaining defendant's demurrer to plaintiff's petition.
Error from City Court of Atlanta; Reid, Judge.
Action by J. J. Brawner against J. J. Maddox and another. A default judgment against defendants was by order of the court opened and defendants' demurrers to the petition sustained, and plaintiff brings error. On motion to dismiss writ of error. Motion overruled, and judgment affirmed.
F. E Radensleben, for plaintiff in error.
C. D Maddox, for defendants in error.
The defendant in error has filed a motion to dismiss the writ of error; and as this motion, if sustained, will dispose of the case, we will consider it first. The first ground of the motion sets up that the plaintiff in error has failed to incorporate in the bill of exceptions a brief of so much of the evidence as is material to a clear understanding of the errors complained of. By Civ. Code 1895, § 5528, a duty is imposed on the judge, as well as on the plaintiff in error; and hence this ground of the motion calls for a review of the actions of both. Paragraphs 1, 2, and 3 of section 5528 read as follows:
We think that the plaintiff in error did what he was required to do by paragraphs 1 and 2. We think the trial judge did what he was required to do in paragraph 3. It is true plaintiff in error did not detail in totidem verbis, or set forth in chronological sequence, the statements coming from the mouths of the witnesses as they were introduced on the hearing of the motion. A brief of the evidence is what is required, and the briefer the better, and certainly the more helpful to courts of review in reaching the merits of a case. In the bill of exceptions certified by the judge it is stated that all recitals in the motion (to open the default) are "accepted as true and undisputed by the plaintiff in error," and thereinafter he asks to be sent up, as part of the record, the motion, the statements of which, he says, are facts. It amounts to saying: "All the evidence, ma-of which I complain, is already 'briefed' it terial to a clear understanding of the errors the motion, and I ask it to be sent up." A fact admitted is not required to be otherwise proved; and a statement of a fact cannot be better verified than by the admission of its truth by the opposite party. We think that it will hardly be questioned that the able judge in the court below so understood it, or he would have complied with the duty laid upon him in Civ. Code 1895, § 5528, par. 3, and would have "changed it so as to make it contain all the evidence necessary to a clear understanding of the errors complained of." This court approves the manner in which this duty was performed by the trial court. Certainly it would have been impertinent for the defendant to have proved more than he stated in his motion, and plaintiff in error says he admits all the recitals in the motion to be true. No testimony, no matter how many witnesses repeated it, nor how great their respectability and reliability, could have proved the statements in the motion any better, or have made the evidence any more full, than did this admission of their truth. We cannot determine from the record whether this admission was made in the court below or not; but, if it had been as full and sweeping there as it appears in the bill of exceptions, we feel sure that the able trial judge would not have uselessly consumed time in hearing the evidence as to these facts, the law declaring them proved when admitted by the opposite party. It was the duty of the judge to make the bill of exceptions contain all the evidence material to a clear understanding of the errors complained of, and we think that duty was performed, not only as fully as required by law, but in such a way as to be practically helpful to this court. When plaintiff in error accepted all the recitals in the motion now before us as true, he said in effect: "Upon this agreed statement of facts (with regard to which there can be no dispute), I contend that the judge erred in opening the default, and here are the facts which were addressed to his discretion." No doubt the trial judge so understood it, and so do we.
In the brief of the defendant in error further objection is urged to the certificate of the judge in that it reads, "certain recitals of the evidence," while section 5532, as is insisted, requires the wording to be either "contains all the evidence" or "specifies all the evidence." We are not required to consider this objection, because it is not set forth in the motion to dismiss; and we will only say, in passing, that the bill of exceptions shows, in the first place, that it is not true in fact. The words used, instead of being "certain recitals of the evidence," are, "contains recitals of the evidence." And, in the second place, while it is true that section 5532 (Acts 1889, p. 114) prescribes a set form for the judge's certificate, it is also true that a later enactment (Acts 1893, p. 52, codified as section 5534) expressly provides that it shall be the duty of the judge to whom any bill of exceptions is presented to see that the certificate is in legal form before signing the same; and any failure of any judge to discharge his duty in this respect shall not prejudice the rights of the parties by dismissal or otherwise. And the uniform current of authority in this state approves the rule to which the concluding portion of this section gives utterance.
The second ground of the motion to dismiss complains that the plaintiff in error, not having incorporated in the bill of exceptions a brief of the evidence, also failed to have such brief approved and sent up as provided in Civ. Code 1895, § 5529....
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Brawner v. Maddox
...58 S.E. 278(1 Ga.App. 332)BRAWNER.v.MADDOX.(No. 27.)Court of Appeals of Georgia.March 1, 1907. 1. Weit of Error—Record—Bill of Exceptions—incokpohation of evidence—statutory Provisions. The right given Civ. Code 1895, § 5529, is one the exercise of which is optional with the plaintiff in er......