Horkan v. Beasley

• Citation: 75 S.E. 341,11 Ga.App. 273
• Decision Date: 02 July 1912
• Docket Number: 3,727.
• Parties: HORKAN v. BEASLEY.
• Court: United States Court of Appeals (Georgia)

75 S.E. 341

11 Ga.App. 273

HORKAN v. BEASLEY.

No. 3,727.

Court of Appeals of Georgia

July 2, 1912

Syllabus by the Court.

Where a statute directs the doing of a thing in a certain time without any negative words restraining the doing of it afterwards, generally the provision as to time is directory and not a limitation of authority; and in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid.

Section 4877 of the Civil Code of 1910, which declares that "it shall be the duty of the judges of the superior and city courts to adjourn the regular and adjourned terms of said courts at least five days before the commencement of the next regular terms of said courts," is directory to the judges, and was not intended to take away from the presiding judge the inherent authority to control the continuance of a term of the court to meet the exigencies of the public business. An order or judgment rendered during a regular or adjourned term, and within less than five days from the commencement of the next regular term, is not for that reason invalid.

Error from City Court of Moultrie; J. D. McKenzie, Judge.

Action by G. A. Horkan against A. W. Beasley. Judgment for plaintiff. From an order vacating the same, plaintiff brings error. Affirmed.

Edwin L. Bryan, of Moultrie, for plaintiff in error.

Jas Humphreys, of Moultrie, and G. C. Edmondson, of Quitman, for defendant in error.

HILL C.J.

This was a suit on a promissory note, brought to the February term, 1911, of the city court of Moultrie, to which the defendant sought to set off an open account. The case was called for trial on June 13, 1911, which was at the May adjourned term of the court, when the plaintiff moved to strike the answer upon the ground that an open account could not be set off against an unconditional contract under seal. The court granted an order striking the answer, and thereupon allowed plaintiff to take judgment for the amount of the note. Subsequently, on August 10th, just four days prior to the convening of the regular August term of 1911, the presiding judge, without any formal application, granted an order vacating the judgment rendered on June 13, 1911, and reinstating the defendant's answer, and on August 24th thereafter by letter advised the plaintiff's attorney of the grant of this order. Immediately upon receipt of this letter, the plaintiff, through his attorney, filed a written motion, asking that the order vacating the judgment be itself vacated and declared void, upon the ground that the judge had no jurisdiction to render it, as the term of court at which the original judgment was granted had ended. This motion the court overruled, and to the order vacating the judgment the plaintiff excepted, upon the ground that, after adjournment by operation of law of the term of the court at which the judgment was rendered, the court had no power or authority to vacate, change, or in any way modify the same; said judgment being no longer in the breast of the court, and the court no longer having any power or authority to control it. The order vacating the judgment was as follows: "G. A. Horkan v A. W. Beasley. Suit on note in the city court of Moultrie. June adjourned term, 1911. The above-stated case having been called in its regular order, and there having been filed a set-off in said case, and upon motion of plaintiff's counsel to strike the set-off, on the ground that a set-off could not be filed to a suit on a note, the set-off being an account, and, before allowing the order, stating to attorney for both sides that, in case the court should find any authority allowing the said set-off, the said case was to be reinstated, and the judgment taken to be set aside, and it appearing to the court, upon authority presented, and while the court is still in session, that the same was error, it is hereby ordered that the judgment taken in said case stand upon docket as it was originally, ready for trial at the next term of the court as though no judgment had ever been taken. This the 10th day of August, 1911. J. D. McKenzie, Judge of the City Court of Moultrie."

The order striking the defendant's answer is based solely upon the ground that the defendant was undertaking to set off an open account against a suit on an unconditional contract under seal. The order is not conditional, and not dependent upon any change of mind which might subsequently be caused by the presentation of authority, and the judgment rendered on the note is in the usual form. The statement of the presiding judge, thereafter incorporated in his order of August 10 1911, vacating his judgment and reinstating the plea, cannot be accepted as in any manner qualifying the original order striking the defendant's plea and entering up final judgment in favor of the plaintiff. The statement made in the order of August 10, 1911, that "the court is still in session," it is insisted, should have no force and effect, in view of section 4877 of the Civil Code of 1910, which declares: "It shall be the duty of the judges of the superior and city courts to adjourn the regular and adjourned terms of said courts at least five days before the commencement of the next regular terms of said courts." The proviso to this section contained in the amendatory act of 1896 (Acts 1896, p. 49), making it inapplicable to any superior or city courts having as many as six terms per year, is not pertinent, as the city court of Moultrie is not within the class of courts covered by the proviso. The regular August term of the city court of...