Butler & Co v. Strickland-tillman Hardware Co
| Decision Date | 19 September 1914 |
| Docket Number | (No. 5502.) |
| Citation | 15 Ga.App. 193,82 S.E. 815 |
| Court | Georgia Court of Appeals |
| Parties | BUTLER & CO. v. STRICKLAND-TILLMAN HARDWARE CO. |
(Syllabus by the Court.)
Error from City Court of Hazlehurst; Gordon Knox, Judge.
Action by the Strickland-Tillman Hardware Company against Butler & Co. Judgment for plaintiff, and defendant brings error. Reversed.
Grant & Rogers, of Hazlehurst, for plaintiff in error.
J. Mark Wilcox, of Hazlehurst, for defendant in error.
RUSSELL, C. J. Strickland-Tillman Hardware Company sued Butler & Co., a partnership, upon an open account. One of the items in the statement of account attached to the petition was "one only 7-knife P. & O. stalk cutter, with neckyoke and doubletree." Upon the call of the appearance docket of the city court, at the October term, 1913, the case was marked in default. At the June term, 1914, the defendants appeared in court, and, after having paid the costs, filed and offered a motion to open the default. They offered in support of the motion the testimony of Chas. H. Butler, a member of the defendant partnership, who testified that at the time of the service of the suit, and at the appearance term in October, 1913, the defendants knew of no defense, as they had not then sold the stalk cutter embraced in the account; that after the case was marked in default they sold the stalk cutter to George C. Parrish for $25; that Parrish took it to his farm and tried it, and brought it back because it was worthless to do the work for which he purchased it, and that for this reason the defendants were obliged to take it back. It is further shown to the court that the defendants were ready to plead, and they did tender, a defense substantially in accord with the facts stated by Butler, and announced ready for trial. It appears, from the bill of exceptions, that the movants were also ready to produce the evidence of George C. Parrish, the purchaser of the stalk cutter, in support of the validity of the plea, but the court, without hearing the evidence of Parrish, overruled the motion to open the default. Exceptions to this ruling were preserved pendente lite. After overruling the motion to open the default, the court entered up judgment by default in favor of the plaintiffs, for the amount of the account in full.
We think the court erred in refusing to allow the default to be opened. It is true, under the provisions of section 5656 of the Civil Code, motions to open defaults are addressed to the discretion of the court. But in the administration of justice, judicial discretion extends to and should be exercised in extraordinary instances as well as in ordinary cases; for an appeal to judicial discretion is an appeal to the judicial conscience, and in the exercise of its discretion it is the duty of the court to see to it that the power with which it is thus clothed is used in such manner as to subserve and not to defeat substantial justice. It is true that the reason for opening the default, presented by the defendant, did not come under the head of providential cause, nor was the failure to file a plea due...
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