Fulton Air Service, Inc. v. Lake
| Decision Date | 22 September 1961 |
| Docket Number | No. 3,No. 39035,39035,3 |
| Citation | 121 S.E.2d 799,104 Ga.App. 417 |
| Parties | FULTON AIR SERVICE, INC. v. P. R. LAKE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where within fifteen days after a case becomes in default the defendant pays accrued costs and files his defensive pleadings no judgment opening such default is either necessary or authorized.
2. A judgment overruling a general demurrer and sustaining a special demurrer and allowing time to amend, while not subject to direct review, where a final judgment is later entered dismissing the petition (no amendment having been filed), the question presented in a proper appeal after such final judgment necessarily involved the question of whether the special demurrer was properly sustained.
3. The bill of particulars was not subject to the defendant's special demurrers.
Fulton Air Service, Inc. filed suit on open account against P. R. Lake and concededly the defendant filed no defensive pleadings until the day following the appearance day at which time he filed his answer and demurrers. Two days thereafter the defendant obtained an order of court opening the default subject to objection and no objection appears from the record to have been made in the trial court. Thereafter, on April 14, 1961, the trial court overruled the defendant's general demurrer but sustained his special demurrer, attacking the bill of particulars and the allegations making reference thereto, giving the plaintiff twenty days in which to amend. No amendment was filed, and on June 2, 1961, the trial court entered a judgment dismissing the action which judgment read in part as follows: 'More than twenty days have elapsed since said order of court, and plaintiff having failed to amend to meet the said order of said court, the above entitled action is hereby ordered dismissed, with cost cast upon the plaintiff.' The plaintiff now assigns error on the judgments adverse to it.
William C. Rimmer, Jr., Atlanta, for plaintiff in error.
Charles D. Wheeler, B. W. Crecelius, Decatur, for defendant in error.
1. The contention is made that the defensive pleadings were filed before the order opening the default and that therefore the plaintiff has a judgment by default and the subsequent proceedings were nugatory. Such contention is without merit. In the case of Whitsett v. Hester-Bowman Enterprises, Inc., 94 Ga.App. 78, 93 S.E.2d 788, it was pointed out that a judgment opening a default within fifteen days is no longer necessary and is unauthorized. While, under such decision, a question as to whether the costs have been paid before the pleadings were filed could have been made and decided by the trial court, such question does not appear from the record to have been raised, and in the absence thereof it must be assumed that the costs were timely paid.
2. The contention is made by the plaintiff that the 'law of the case' was established by the original order overruling the defendant's general demurrer and that the final order dismissing the petition was error for such reason. ...
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