Burson v. Lunsford
| Decision Date | 08 June 1936 |
| Docket Number | No. 25160.,25160. |
| Parties | BURSON. v. LUNSFORD. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The practice of the city court of Decatur as to the entry of defaults being con trolled by that of the superior courts, the striking of an answer filed after the appearance term is erroneous, in the absence of any entry of the case on the docket as "in default, " or any special order adjudicating the case to be in default, prior to the filing of the defense.
Error from City Court of Decatur; Frank Guess, Judge.
Suit by C. L. Lunsford against E. N. Burson. To review the judgment, defendant brings error.
Reversed.
Scott Candler, C. N. Davie, and J. F. Kemp, all of Atlanta, for plaintiff in error.
Augustine Sams, of Atlanta, for defendant in error.
1. Where city court acts such as that creating the city court of Decatur (Ga.Laws 1922, pp. 248, 249) provide that "so far as the same may be applicable, and not herein otherwise provided, the rules of practice, forms of pleading and methods of procedure now prevailing in, or that may be hereafter provided for the Superior Courts of this State shall be adopted and followed in said City Court" (section 4), the statutory rules governing superior courts, as to the filing of defenses and the entry and opening of defaults, will control such city courts, except in so far as those rules are nullified or modified by some other provision in the city court act. Clifton v. Fiveash, 122 Ga. 383, 384, 50 S.E. 134; Fountain v. Ragan-Malone Co, 141 Ga. 58, 59 (1), 80 S.E. 306; Taylor v. Stovall, 30 Ga.App. 678 (2), 118 S.E. 795; Cobb v. Burgamy, 39 Ga. App. 602 (1, 2), 147 S.E. 921.
2. By the judiciary act of 1799 and subsequent Code provisions, it was required that the answers or pleas of defendants "shall" be filed on or before the last day of the term to which the petition was returnable; otherwise a default judgment could be taken on motion of the plaintiff. Cobb's Dig. p. 486; Johnson v. Ballingall, 1 Ga. 68, 70; Jernigan v. Carter, 51 Ga. 232, 234 (2). Under Code 1933, § 81-305, as under prior Codes, the language of the former law, fixing the last day of the return term as the time limit for the filing of defenses, was slightly changed so as to require appearance and written defense "at" the first term. By the practice act of 1895 (Ga.Laws 1895, p. 45), embodied in the present Code as section 110-401, the former law as to the filing of defenses, the duties of judges in reference to an appearance docket, and the entry of defaults was modified by the following provisions: Thus, for the first time the marking of an entry of "default" on the docket was made mandatory. The succeeding sections 110-402 to 110-405, inclusive, as to the opening of defaults upon payment of costs and the discretion of a judge to allow at the trial term the opening of a default upon compliance with conditions as stated, assume and are not made operative until after "the entry of 'default'." Unless a special order of default is taken, it is now the entry by the judge on the docket of the words "in default" that effects a judgment by default and evidences such an adjudication. Davis v. South Carolina & G. R. Co, 107 Ga. 420, 422, 33 S.E. 437; Fraser v. Neese, 163 Ga. 843 (1-3, 5 [d]), 137 S.E. 550. If the judge neglects to mark an undefended case "in default" at the first term, "the time within which the defendant may answer is accordingly prolonged." Currie v. Deaver, 1 Ga.App. 11 (2), 13, 57 S.E. 897, 898. Thus it is well settled by repeated adjudications, made under the act of 1895, that "where a case has never been marked 'in default' on the docket, and no order has been taken declaring it to be 'in default, ' an answer to the merits of the case, filed at a term subsequent to the appearance term, will not be dismissed because not filed in time." McKenzie's Sons & Co. v. Consolidated Lumber Co, 142 Ga. 375 (1), 82 S.E. 1062; Hall v. Tiedeman, 141 Ga. 602 (1), 81 S.E. 868; Glass v. Allen, 141 Ga. 30 (1), 80 S.E. 284; Neal v. Davis Foundry & Machine Works, 131 Ga. 701, 707, 63 S.E. 221; Gordon v. Hudson, 120 Ga. 698, 699, 48 S.E. 131; Gillis v. Atlantic Coast Line R. Co, 127 Ga. 678, 56 S. E. 1003. These principles have been ap plied to city courts whose rules of pleading and practice, under the acts creating them, follow those of the superior courts. Clifton v. Fiveash, supra; Anderson Banking Co. v. Chandler, 27 Ga.App. 102 (2), 107 S.E. 494; Buford v. Southern Cotton Oil Co, 20 Ga.App. 581, 584, 93 S. E. 318. The rule may be different as to dilatory pleas, such as pleas to the jurisdiction, and special demurrers, which, if not filed at the first term, may not be filed at a subsequent term, even though the case may not have been marked "in default" at the appearance term. See Hall v. Tiedeman, supra, 141 Ga. 602 (2), 81 S. E. 868; Ross v. Mercer, 118 Ga. 905 (2), 45 S.E. 787; Smith v. Aultman, 30 Ga. App. 507 (4), 118 S.E. 459.
Cases relied upon as holding contrary to the preceding rules are distinguishable, because: (1) They arose prior to the practice act of 1895, which first made mandatory the call of the appearance docket and the entry of a case as "in default" in order to render it in default, in the absence of a special order therefor (Camp v. Wallace, 61 Ga. 497; McCall v. Tufts, 85 Ga. 619, 11 S.E. 886; Western Union Telegraph Co. v. Lark, 95 Ga. 806, 807 [2], 23 S.E. 118; Fisher v. Savannah Guano Co, 97 Ga. 473, 25 S.E. 477); or (2) the case was treated as if a "default" had been actually entered under the act of 1895, although the facts reported are not clear in so indicating (Thornton v. Coleman, Burden & Warthen Co, 104 Ga. 625-627, 30 S.E. 782); or (3) the case arose in a city court where there was no "appearance term, " and "the judge was not obliged to call the appearance docket, " as required in the superior courts under Code 1933, § 110-401 (Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 969, 41 S.E. 54). See Buford v. Southern Cotton Oil Co, supra, 20 Ga.App. 581, 582-585, 93 S.E. 318; Bridges v. Wilmington Savings Bank, 36 Ga.App. 239, 136 S.E. 281, where several of these cases are discussed and distinguished from the settled line of authority.
There are some cases containing general language that, even though there be no entry of "default" on the docket, the filing of a plea or answer after the appearance term is a matter of "discretion." Thus, in Price v. Hamilton, 146 Ga. 705, 92 S.E. 62, it was held that, "where a case is not marked 'in default' on the docket, the court may, in its discretion, at a subsequent term before such entry has beenmade, permit a plea to be filed, and entertain a motion to dismiss the petition on the ground that it does not contain a cause of action." (Italics ours.) Chambless v. Livingston, 123 Ga. 257, 51 S.E. 314, and Glass v. Allen, supra, 141 Ga. 30, 80 S.E. 284, are cited as authority for this ruling. In the latter case it was merely held that it "was error, on the call of the case for trial, to strike the demurrer and plea because not filed in time, " where "the case was never marked 'in default.'" The element of "discretion" does not appear to have entered into the case. In the Cham-bless Case the court held: "When, upon the call of the appearance docket, no entry of default is made, the court may, in its discretion, at a subsequent term permit a plea to be filed at any time before such entry has been made." (Italics ours.) Gordon v. Hudson, 120 Ga. 698, 48 S.E. 131, is cited in support of this holding. In the latter case, however, as in Glass v. Allen, supra, it was held that "it is error, on the call of the case for a hearing, to dismiss the plea and the demurrer because not filed in time." It was further held in the opinion that "anything in the case of Deering Harvester Co. v. Thompson, 116 Ga. 418, 42 S.E. 772, that is contrary to what is now held is not binding as authority, for the reason that the case cited was decided by only five justices, while the present case is based on an earlier decision rendered by a full bench of six justices" (Davis v. South Carolina & G. R. Co, supra, 107 Ga. 420, 33 S.E. 437). In the Thompson Case, thus disapproved, it was held that "a default will not be opened at the instance of a defendant unless he shows a 'reasonable excuse' for failing to file an answer at the first term; that is, such an excuse as will justify the exercise in his favor of a sound legal discretion." (Italics ours.) The Thompson Case seems to have been treated by the parties as well as the courts as one already in default by being so marked, since it was stated that the defendant "moved to open the default." In this respect that case is similar to Thornton v. Coleman, Burden & Warthen Co, 104 Ga. 625-627, 30 S.E. 782, distinguished supra. The Davis Case is cited as the controlling authority by the Gordon and Glass Cases, supra, which in effect disapproved the principle of "discretion" as applicable where no "default" had been marked; and by the Chambless Case, supra, 123 Ga. 257, 51 S.E. 314, which uses the general language that "the ...
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