Edison Provision Co. v. Armour & Co.

• Decision Date: 03 May 1935
• Docket Number: 24547.
• Citation: 179 S.E. 829,51 Ga.App. 213
• Parties: EDISON PROVISION CO. v. ARMOUR & CO.
• Court: Georgia Court of Appeals

179 S.E. 829

51 Ga.App. 213

EDISON PROVISION CO. v. ARMOUR & CO.

No. 24547.

Court of Appeals of Georgia, First Division

May 3, 1935

Syllabus by the Court.

1. In a suit filed and served to which no process is attached appearance and pleading to the merits is a waiver of the absence of process. In such an action, appearance by the defendant with a request for additional time in which to file a plea to the merits, and a subsequent filing of such a plea although filed too late, without at any time moving to dismiss for such failure to attach process or object thereto is a waiver of such defect.

(a) Any alleged errors in refusing to allow such a plea to be considered, or exceptions to the judgment rendered, will not be considered in a hearing of an affidavit of illegality filed to the levy of an execution issued under such judgment.

2. The fact that the wife of the judge who entered the default was a first cousin to the wife of the defendant does not disqualify the judge.

3. The court did not err in finding against the affidavit of illegality.

Error from City Court of Morgan; Clayton Jones, Judge.

Execution proceeding by the Armour & Company against the Edison Provision Company. To review a judgment overruling its affidavit of illegality, defendant in execution brings error.

Affirmed.

W. V Custer & Son, of Bainbridge, for plaintiff in error.

Bennet & Peacock, of Albany, for defendant in error.

GUERRY Judge.

The Armour & Company brought suit on a note in the city court of Morgan against T. N. Hendricks and Edison Provision Company. The case was marked in default at the January term, 1934, and at the April term a verdict and judgment were taken in favor of the plaintiff. Execution was issued thereon, a levy made, and an affidavit of illegality interposed by the Edison Provision Company, on the grounds, among others, that the defendant had never had his day in court, there not being attached to the original suit any process requiring the defendant to answer the suit; that no appearance or pleading was made by defendant, and that the entry of default, made at the appearance term, was made by a judge who was disqualified on account of relationship. At the hearing of the affidavit of illegality it was shown that the judge who made the entry of default married a cousin of the wife of T. N. Hendricks, one of the defendants and manager and principal stockholder of the other defendant. This judge testified at the trial of the affidavit of illegality, held before another judge, that at the time he made the entry of default, Hendricks, one of the defendants and manager and principal stockholder of the other defendant, asked him to allow 30 days' additional time in which to file an answer. The judge stated: "I gave him additional time to file his plea, but I did not make an entry on the docket." The defendant filed a plea on April 14, 1934. The default was never opened. No process was attached to the original suit. At the trial of the affidavit of illegality the defendant in fi. fa. objected to the introduction of the plea filed by him, on the ground that it was not sworn to and that it had never been allowed by an opening of the default. The plea itself was marked filed by the clerk of the court. The court directed a verdict against the affidavit of illegality.

It is insisted by counsel for the plaintiff in error that since the plea filed was filed after the time allowed by the court "it was out of time-not duly filed, and therefore the same as if not filed at all" (Camp v. Wallace, 61 Ga. 497, 500); that, there never having been an order opening default, no plea could have been legally filed, and for that reason there had been no appearance and pleading by the defendant which amounted to a waiver of process and service. The Civil Code 1910, § 5559 (Code 1933, § 81-209), provides: "Appearance and pleading shall be a waiver of all irregularities of the process, or of the absence of process, and the service thereof." Does the appearance in court of a defendant in a suit to which...