Buttersworth v. Swint
| Decision Date | 06 July 1936 |
| Docket Number | 25395. |
| Citation | 186 S.E. 770,53 Ga.App. 602 |
| Parties | BUTTERSWORTH v. SWINT. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. When, upon the call of the appearance docket, no entry of default is made, the court may in its discretion, even at a subsequent term, permit a plea to be filed at any time before such entry has been made.
2. A petition by one against a physician for improper and unprofessional advice must show that the relationship of physician and patient existed between the plaintiff and the defendant, and where the petition discloses the refusal of the defendant physician to examine or treat the plaintiff merely giving as his opinion that he thought by the use of a support her condition would correct itself, the petition sets out no cause of action.
Error from Superior Court, Baldwin County; James B. Park, Judge.
Suit by O. R. Buttersworth against R. C. Swint. To review an adverse judgment, plaintiff brings error.
Affirmed.
McCullar & McCullar, of Milledgeville, for plaintiff in error.
M. J Yeomans, Atty. Gen., B. D. Murphy and John T. Goree, Asst Attys. Gen., and Marion Allen and Sibley & Allen, all of Milledgeville, for defendant in error.
This case was transferred to this court from the Supreme Court by its judgment of November 15, 1935 (181 Ga. 430, 182 S.E 520), that this court and not the Supreme Court had jurisdiction of the writ of error, as authorized by Const. art. 6, § 2, par. 9 (Code 1933, § 2-3009). The suit is one for damages against Dr. R. C. Swint, who, at the time the acts complained of were committed, was superintendent of the Milledgeville State Hospital, an institution owned and operated by the state of Georgia. See Code 1933, § 35-201 et seq.
The suit was filed, and made returnable to the July term, 1934, of Baldwin superior court. In due time an answer and demurrers, general and special, were filed for the defendant, signed by counsel as follows: At the return term, the plaintiff filed a "formal motion to strike answer and demurrers and mark case 'in default."' This motion was based on the theory that neither the Attorney General nor his assistants had any authority under the law to represent the defendant, and were expressly prohibited from doing so, and that therefore no proper answer had been filed. At the same term, and before the case was marked in default, the court, over objections of the plaintiff, allowed the firm name of "Sibley and Allen" to be marked on the pleadings as additional counsel appearing for the defendant, and refused to mark the case in default or strike from the record the name of the Attorney General and his assistants. The plaintiff excepted to this order by exceptions pendente lite, and assigns error thereon in this court.
1. When, upon the call of the appearance docket, no entry of default is made, the court may in its discretion, even at a subsequent term, permit a plea to be filed at any time before such entry has been made. Hodnett v. Stewart, 131 Ga. 67, 61 S.E. 1124; Gordon v. Hudson, 120 Ga. 698, 48 S.E. 131; Chambless v. Livingston, 123 Ga. 257, 51 S.E. 314; Clifton v. Fiveash, 122 Ga. 383, 50 S.E. 134. Even assuming, as contended by counsel for the plaintiff in error, that the Attorney General and his assistants were not authorized to appear and plead as counsel for the defendant, and further assuming that any pleadings filed by the Attorney General and his assistants were of no effect, yet, under the above rule that the trial judge may in his discretion, even after the appearance term, allow a plea to be filed where no entry of default has been made in the case, this court will not hold that the trial judge abused his discretion in allowing additional counsel to sign their names to the pleadings at the appearance term before any entry of default had been made on the docket.
2. Passing to the merits of the petition, challenged by the demurrer of the defendant, and found subject thereto by the trial judge, we find that the facts as alleged in the petition fail to set forth any cause of action against the defendant. The action is essentially one against the defendant, as a physician, for malpractice. One theory of the petition is that he failed, after knowing or being advised of her condition, to render the plaintiff proper and necessary...
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