Hall v. Tiedeman

• Decision Date: 23 April 1914
• Docket Number: (No. 298.)
• Citation: 141 Ga. 602,81 S.E. 868
• Parties: HALL et al. v. TIEDEMAN.
• Court: Georgia Supreme Court

(141 Ga. 602)

81 S.E. 868

HALL et al.

v.TIEDEMAN.

(No. 298.)

Supreme Court of Georgia.

April 23, 1914.

(Syllabus by the Court.)

1. Pleading (§ 85*)—Answer—Default.

Where the case has never been marked "in default" on the docket, nor any order taken declaring the case to be "in default, " it is error to dismiss an answer to the merits of the cause, filed at a term subsequent to the appearance term, because not filed in time.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 172-178; Dec. Dig. S 85.*]

2. Pleading (§ 103*)—Plea to the Jurisdiction—Time of Filing.

A plea to the jurisdiction is a dilatory plea, and must be filed at the first term. It is too late to file such a plea at a subsequent term, notwithstanding the case may not have been marked "in default" at the appearance term.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 208-212; Dec. Dig. § 103.*]

Error from Superior Court, Montgomery County; W. M. Lewis, Judge.

Action by George W. Tiedeman against J. K. Hall and others. Judgment for plaintiff, and defendant Hall brings error. Affirmed in part, and reversed in part.

Clinton P. Thompson, of Atlanta, for plaintiff in error.

H. C. Beasley, of Reidsville, for defendant in error.

EVANS, P. J. An action on a note was brought by George W. Tiedeman against J. K. Hall and several others, returnable to the May, 1912, term of the superior court of Montgomery county. On the call of the appearance docket at the return term it appeared that some of the defendants had not been served, and an order was taken to perfect service by the November, 1912, term, and making that term the appearance term of the cause. At that term of the court the case was not called for answer, and was not marked "in default" on the docket, nor was any default judgment entered during that term. On February 4, 1913, the defendant J. K. Hall filed with the clerk of the court his plea to the jurisdiction, and also an answer to the merits. Upon the call of the case at the February, 1913, term, the court dismissed the defendant's plea and answer, upon the ground that the same were not filed in time, and entered up judgment on the note.

The statute provides that the judge at each term shall call the appearance docket upon some day previously fixed, or upon the last day of the term. Upon such call the cases in which the defendant has not filed a demurrer, plea, answer, or other defense shall be marked "in default." Civil Code 1910, § 5G53. This statute has been construed to mean that, unless a case has been marked "in default, " it is error, on the call of the case for a hearing, to dismiss the defendant's plea because not filed in time. Gordon v. Hudson, 120 Ga. 69S, 48 S. E. 131; Neal v. Davis Foundry &...