Mathews v. Bishop

• Decision Date: 04 March 1899
• Citation: 32 S.E. 631,106 Ga. 564
• Parties: MATHEWS et al. v. BISHOP.
• Court: Georgia Supreme Court

32 S.E. 631

106 Ga. 564

MATHEWS et al. v. BISHOP.

Supreme Court of Georgia

March 4, 1899

Syllabus by the Court.

1. That part of the pleading act of 1895 (Civ. Code, § 5069 et seq.) which deals with the subject of defaults, relates merely to simple defaults, and has no application to final judgments whether they be rendered by the court or entered up on verdicts in cases "in default."

2. A judgment will not be vacated at the instance of the defendant upon the ground that the plaintiff, prior to the judgment and in consideration of the settlement of his cause of action verbally agreed to dismiss his suit, and for this reason the defendant failed to appear and plead at the proper time, where the plaintiff denies such settlement and agreement.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by T. L. Bishop against W. A. Mathews & Co. Judgment for plaintiff, and defendants bring error. Affirmed.

V. W. Davies and C. L. Pettigrew, for plaintiffs in error.

W. R. Brown, for defendant in error.

FISH J.

Bishop sued W. A. Mathews & Co. on account, in the city court of Atlanta, and Mathews was personally served. Upon the call of the case, in its order, for trial at the first term, there being no appearance for the defendant and no plea or answer filed, verdict and judgment were rendered against the defendant for the amount of the account. Judgment was also entered up against the surety on defendant's bond to dissolve a garnishment based upon the suit. On the next day and during the term, Mathews & Co., having paid the costs, filed a petition praying the court "to open the default, and to set aside the verdict and judgment, and allow defendant to demur or plead in the case." The allegations of the petition were, in substance, that, prior to the term at which the verdict and judgment were rendered, W. A. Mathews, in company with Davies, attorney for defendants, had a conference with plaintiff, at which an agreement was reached as to the settlement of certain matters of account between the parties, the understanding of Mathews and defendants' attorney being that the settlement included the account sued on; and that it was further agreed, at this conference, that plaintiff's suit should be dismissed. The petition also alleged that defendants had a meritorious defense to plaintiff's suit, viz.: "That the fixtures sued for in the case were sold by Bishop to said Mathews several months prior to the filing of this case, and that the fixtures thus came into the possession of Mathews, and were paid for in the general payment for the assets, stock, etc., of Snow, Church & Co." A rule nisi was granted, calling upon Bishop to show cause why the prayers of the petition should not be granted. He answered, denying that there ever had been any settlement of his account against Mathews & Co., or any...