Jenkins v. Whittier Mills Co.

• Decision Date: 18 September 1917
• Docket Number: 8481,8526.
• Citation: 93 S.E. 530,20 Ga.App. 828
• Parties: JENKINS v. WHITTIER MILLS CO. WHITTIER MILLS CO. v. JENKINS.
• Court: Georgia Court of Appeals

93 S.E. 530

20 Ga.App. 828

JENKINS v. WHITTIER MILLS CO.

WHITTIER MILLS CO. v. JENKINS.

Nos. 8481, 8526.

Court of Appeals of Georgia, First Division

September 18, 1917

Syllabus by the Court.

Where a defendant is duly served, and fails to appear or plead within the time prescribed by law, an entry by the judge of the sole word "Default" upon that part of the appearance docket which is devoted to a case is a sufficient compliance with the requirements of Civil Code 1910, §§ 5653, 5661. Brawner v. Maddox, 1 Ga.App. 332, 58 S.E. 278 (4).

(a) Whether or not in the city court of Atlanta an entry of default can ever be legally necessary, or anything more than a mere memorandum for the convenience of the judge, is a question not now presented for decision; but see Dodson Printers' Supply Co. v. Harris, 114 Ga. 966, 41 S.E 54 (2); Thurmond v. Groves, 126 Ga. 779, 55 S.E 915.

(b) Whenever an entry of default is necessary or proper, it is preferable, though not legally essential, that the entry be in the language of the statute, and be followed by the date on which it is made. Under such a practice, the entry in the present case would have read: "In default, November 8 1916."

The provisions of Civil Code 1910, § 5656, as to opening a default at the first term, apply only to judgments of the character referred to in the preceding headnote, and have no reference whatever to a final judgment, which, under the provisions of the act establishing the city court of Atlanta may be rendered at the first term as effectively as at any subsequent term. But, aside from section 5656, supra, the court, as a general rule, has plenary power over all its judgments and orders during the term at which they are rendered, and may modify or vacate them for good cause shown. Florida Central R. Co. v. Luke, 11 Ga.App. 290, 75 S.E. 270 (1).

Where no defense is filed within the time required by the act creating the city court of Atlanta, and a verdict is returned in favor of the plaintiff, and a judgment is duly entered thereon, the judgment will not be vacated, even during the same term, at the instance of the defendant, where he shows no good reason 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 where the defendant shows a legal reason for its exercise. No such reason having been shown in this case, the judge properly denied the motion of the defendant to open the so-called default,...