Butler v. Richmond & D. R. Co

• Decision Date: 23 November 1891
• Citation: 88 Ga. 594,15 S.E. 668
• Court: Georgia Supreme Court
• Parties: Butler v. Richmond & D. R. Co.

15 S.E. 668

88 Ga. 594

Butler

v.Richmond & D. R. Co.

Supreme Court of Georgia.

Nov. 23, 1891.

Judgment— Opening Default—Accord and Satisfaction.

1. While, under the rule of court, a judgment of default should never be opened without the payment of costs, yet where these terms are not insisted upon by opposite counsel, and the court for special reasons allows pleas to he filed without the payment of costs, the judgment will be left to stand, on the doctrine of discretion and conformity to local practice, though such practice is unsound. Where payment of costs is insisted upon at the time by the opposite party or his counsel, it should always he exacted.

2. Where accord and satisfaction are em-bodied in a written instrument which the plaintiff has signed with his mark, and he denies that he ever entered into such a contract, or that the same was read over to him, and claims that the amount paid him was not paid upon such contract, but upon his claim for wages, and that in signing he thought he was subscribing to an ordinary pay roll only, it is not necessary for him to refund the amount received to entitle him to make the question of fraud in imposing upon him the written contract, into which he did not enter, In lieu of the actual contract, under which the money was paid to him.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps. Judge.

Action by Richard Butler against the Richmond & Danville Railroad Company to recover damages for personal injuries sustained while in defendant's employment. Judgment for defendant. Plaintiff brings error. Reversed.

F. R. & J. G. Walker, for plaintiff in error.

Jackson & Jackson, for defendant in error.

Bleckley, C. J. 1. A fundamental requisite in judicial procedure is that all parties and all counsel shall conform to like rules and be equally diligent. Exceptions may be made in favor of age or infirmity, but none should be allowed on account of difference in the mass of business or number of cases which counsel may be engaged in, or the class of parties which they represent. Any local practice which makes such distinctions is not sound; but while it prevails, and the presiding judge recognizes and conforms to it, his conformity in a given instance, unless some substantial injustice is done, may be left to stand upon the doctrine of discretion. The twenty-third rule of the court (Code, p. 1348) says that, "upon opening a judgment by default, the defendant shall plead instanter to the merits of the action, and no default shall be opened but upon payment of all costs which may have accrued. Tested by the law of the state, and not by the local practice in the city court of Atlanta, the case, when defendant proposed to plead, was in default; and, under the rule of court, the payment of costs was requisite to open the default. That condition ought to have been imposed, but opposite counsel did not insist upon it, and, the court thinking there were special reasons why the privilege of pleading should be allowed at that stage of the case, we can hold there was no reversible error. Had the payment of costs been insisted upon, we might have held otherwise. Certainly the costs ought to be paid in every case if they are exacted; indeed, the rule of court Is imperative, even where they are not exacted. All local practice ought to conform to it.

2. The plaintiff sought to make the question that the written instrument in the form of a receipt and release, which the company produced, showing on its face an accord and satisfaction touching the cause of action declared upon, was procured from him by fraud. The instrument was signed with his mark, and he denied that he ever entered into such a contract or that the same was read over to him. He admitted that the amount specified as paid to him was paid, but denied that it was paid on any such contract. He contended that it was paid upon his claim for wages, and that, in signing the instrument, he thought he was subscribing to an ordinary pay roll only. He testified...