Florida Cent. R. Co. v. Luke

• Decision Date: 02 July 1912
• Docket Number: 4,171.
• Citation: 75 S.E. 270,11 Ga.App. 290
• Parties: FLORIDA CENT. R. CO. v. LUKE.
• Court: Georgia Court of Appeals

75 S.E. 270

11 Ga.App. 290

FLORIDA CENT. R. CO. v. LUKE.

No. 4,171.

Court of Appeals of Georgia

July 2, 1912

Syllabus by the Court.

Under the act creating the city court of Thomasville (Acts 1905, p 383), as amended by the act approved August 22, 1907 (Acts 1907, p. 238), it is the duty of the trial judge to call the appearance docket, and, if no defense is filed on or before the call of the docket, the judge must, upon sufficient proof submitted by the plaintiff, render a judgment in his favor. There is nothing, however, in the provisions of the act creating the city court of Thomasville, or in its amendments which abrogates the general rule that during the term the court has plenary power over all of its judgments and orders and may modify or vacate them for good cause shown.

Where under the provisions of the act creating the city court of Thomasville, no defense is filed within the time required by the act, and judgment is rendered in favor of the plaintiff, such a judgment will not be vacated, even during the same term, at the instance of a defendant who shows no reason good in law for his failure to appear and file his defense within the time required by the act. The discretion vested by law in the trial judge is a legal discretion, and will be exercised only in cases where the defendant shows a legal reason for its exercise. No such reason having been shown in this case, the judge properly held that he was without power or authority to vacate the judgment.

Error from City Court of Thomasville; W. H. Hammond, Judge.

Action by Roscoe Luke against the Florida Central Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

J. H. Merrill, of Thomasville, for plaintiff in error.

Roscoe Luke and Louis S. Moore, both of Thomasville, for defendant in error.

POTTLE J.

Luke brought an action in the city court of Thomasville upon an open account against the Florida Central Railroad Company and the Tallahassee Sawmill Company. The petition was returned to the March term, 1912. At the appearance term. and upon the day fixed for the call of the appearance docket, pursuant to the notice which had been published in the newspaper of the city of Thomasville, the case was sounded. No defense having been filed by either of the defendants, the plaintiff was permitted to make proof of his claim, and judgment was entered in his favor against both of the defendants jointly. On March 23, 1912, during the same term of the court at which the judgment was rendered, and before the adjournment, the Florida Central Railroad Company, having paid all the costs which had accrued in the case, filed a motion to set aside the judgment, annexing to the motion a demurrer and a plea, and announcing its readiness to go to trial. The motion to vacate set forth, as a reason why it should be sustained, that the movant had regularly retained a member of the Thomasville bar to look after all of its business in the courts, and depended upon and expected this counsel to file its defense to the suit, "but by some misunderstanding or otherwise (movant is unable to state why) this was not done, and in consequence thereof the case was in default when the appearance docket was called. Movant's president, *** who had exclusive charge of such matters for it, did not see the publication as to when the appearance docket would be called, and understood counsel for the company to say, when he asked him about this case, that it would not be called until the last of the week of court, and but for this he would have been at the court, and personally attended to this case, and seen to the filing of its defense." Upon this motion a rule nisi was granted, and upon the hearing the judge sustained a demurrer setting up, in substance, that no sufficient reason was set forth in the motion why the judgment should be vacated, and that upon the facts presented the judge was without discretion or power to vacate the judgment; the order reciting that it was based both upon the ground that under the act creating the city court of Thomasville the court had no discretion to vacate the judgment, and upon the ground that the facts set forth in the motion were not sufficient to authorize the court to set aside the judgment. To this order the defendant excepted.

1. In the original act creating the city court of Thomasville it was provided that "the defendant shall file his defense on or before the first day of the first term of said court and said case shall then be tried unless continued, postponed, or passed by the court, for such causes and under such rules as cases are now continued, postponed or passed, unless not reached by the court." Acts 1905, p. 385, § 7. This act was later amended by striking the whole of section 7 and inserting in lieu thereof the following: "That all civil cases shall be returnable for trial to the first regular quarterly term of said court convening twenty days, or more, after the filing and docketing of the case, and fifteen days or more after the service of process on the defendant. All defenses must be filed at the first term, and in any case where no defense is filed before or at the time the judge calls the appearance docket, then the judge shall, upon sufficient proof submitted by the plaintiff, render judgment without the intervention of a jury for the plaintiff; if a demurrer is filed and overruled and no other defense is filed, then the judge shall render judgment as though no defense had been filed. If a defense is filed, other than as last above mentioned, then the case shall go to the next regular quarterly term as the trial term." Acts 1907, p. 239, § 2. The statutes in relation to opening defaults in the superior court have no application to the city court of Thomasville, since in that court, when no defense is filed, judgment may be taken at the first term. Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 41 S.E....