Gregg v. Fitzpatrick
| Decision Date | 26 September 1936 |
| Docket Number | No. 25549.,25549. |
| Parties | GREGG. v. FITZPATRICK et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The entry of a consent order on the appearance docket of a superior court, ex tending to a stated date the time for filing demurrers and pleas by a defendant, will not of itself operate as an order of default effective at the time stated, where the defenses are not filed by that time but are filed at a later date. In the instant case there was no motion for the entry of a default; and no prejudicial error appears in the overruling of the demurrer to the original answer filed after the time stated on the appearance docket, on the ground that such answer was filed too late; especially so, where, after the plaintiff filed this demurrer, the defendant filed two amendments to her answer, setting up and elaborating the gist of all the defenses pleaded in the original answer, and where these defenses were allowed by the court without objection, motion to strike, demurrer, or other pleading, on the ground that they were filed too late. This is true irrespective of the merits of this ground of demurrer to the original answer, and irrespective of whether or not the question as to the time of filing the answer, requiring reference beyond the face of the pleadings to the court docket, could properly have been raised by demurrer, rather than by motion to strike the answer as filed too late.
2. The note sued on being a Florida transaction to be performed in that state, its validity as to the defendant wife was controlled by the laws and decisions of Florida. The note and the mortgage securing it having been given for the purchase money of Florida land, under the law of that state the obligations were not enforceable against the separate property of the wife; and as to her the right and remedy of the plaintiff, even if a bona fide purchaser, were limited to the mortgaged property.
3. A certified copy of the deed to the mortgaged property, made by the payee of the note to the husband of the defendant and a person residing in Florida, was properly admitted in evidence upon proof that the original instrument was not in the possession of the parties to the case, and could not be found among the effects of the husband, who had died during the pendency of the suit, and that, even if it were in the possession of the Florida grantee, the instrument was thus beyond the jurisdiction of the court, eliminating the necessity of showing by interrogatories that the Florida grantee did not have it in his possession.
4. The court correctly directed a verdict for the plaintiff against the representative of the deceased husband and the wife, and limited a collection of the judgment to themortgaged land, excluding the separate property of the wife. No prejudicial error appears in the admission of any testimony to which exception was taken. A new trial was properly refused.
Error from Superior Court, Morgan County; James B. Park, Judge.
Suit by J. B. Gregg against I. R. Fitzpatrick, and wife, wherein the husband's executor was made a party after the husband's death. To review an adverse judgment, plaintiff brings error.
Affirmed.
Emerson H. George, of Madison, for plaintiff in error.
C. S. Baldwin, Jr., of Madison, and Noel P. Park, of Greensboro, for defendants in error.
In October, 1933, the plaintiff filed suit against a husband and wife, on a promissory note signed by them in Georgia and by a third person, payable at a bank in Florida, and secured by a mortgage on real estate in Florida. On the call of the appearance docket at the December term, 1933, the judge made this entry: "By consent of the attorney for plaintiff the defendants are allowed to Feb. 1st, 1934 to file demurrers and pleas in this case." The husband afterward died, but his executor, who was made a party, entered no defense. On March 2, 1935, the wife filed an answer, denying indebtedness and the receipt of any notice for attorney's fees, and setting up that she signed the note as surety for her husband, and that the note, given for Florida land, was void under the laws of that state. On March 29, 1935, the judge entered an order, allowing an amendment by the wife to her answer, which order recited that "this order is allowed by consent of the attorneys in this case, " and provided that the filing and allowance be "subject to any demurrer by the plaintiff any time through May 6th, 1935." On December 2, 1935, the court passed an order, allowing another amendment to the answer. The wife's first amendment set up in detail the defense that the note was a Florida contract, to be performed in that state, and that under its laws the note was void as to a married woman and effective only by an enforcement of the mortgage on the land. The second amendment admitted the execution and ownership of the note and a prima facie case, and relied only upon the affirmative defense claimed. On March 6, 1935, plaintiff filed a general demurrer to the original plea and answer of the wife, on the ground that it had been filed too late, that the entry on the docket "operated as a default, " and that the answer disclosed no excuse or reason why the default should be opened. The plaintiff also demurred specially to the paragraphs of the original answer, pleading the defenses claimed. On May 4, 1935, the plaintiff demurred to the first amendment, generally on the ground that it stated no defense, and specially on a similar ground as to the particular paragraphs. On May 20, 1935, the court entered an order, overruling the demurrers to the defenses that the note was a Florida contract and controlled by the laws and decisions of that state, and that the note was executed by the wife only as a surety for her husband. On June 3, 1935, the court passed a supplemental order, overruling the ground of demurrer that the case was in default, and that the original answer was filed too late. Other than by a ground in the demurrer to the original answer, no objection to its filing appears. Nor does the record show any objection or exception to the allowance of either of the amendments to the original answer, or any motion to strike the same, or any demurrer or other attacking pleading, on the ground that either amendment was improperly allowed or filed because it was tendered or filed too late. There is no attack on either amendment save the first, and that is limited to grounds of the demurrer attacking the merits of the defenses. The court directed a verdict in favor of the plaintiff against both defendants; but as to the wife, limited the collection of the judgment to the mortgaged property, excepting the separate property owned by the wife. The plaintiff assigns error on exceptions pendente lite to the rulings on demurrer and on the refusal of a new trial on the ground; hereinafter indicated.
1. An entry of the words "in default, " or the word "default, " or "defl't" as an unmistakcable abbreviation of such word, on the appearance docket of a superior court, is essential to constitute a judgment that a case is in default and render it ripe for a final judgment at such time as the law provides. Code, § 110-401; Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270, 51 S.E. 297; Fraser v. Neese, 163 Ga. 843 (1-3, 5d), 137 S.E. 550; Jenkins v. Whittier Mills Co., 20 Ga.App. 828, 93 S.E. 530; Brawner v. Maddox, 1 Ga.App. 332, 58 S.E. 278. Unless and until there is such an entry, or a special order of default (which is no longer necessary under our statute), the time for...
To continue reading
Request your trial