Miller v. Phcenix Mut. Life Ins. Co, (No. 6942.)

• Decision Date: 14 March 1929
• Docket Number: (No. 6942.)
• Citation: 147 S.E. 527,168 Ga. 321
• Parties: MILLER et al. v. PHCENIX MUT. LIFE INS. CO.
• Court: Georgia Supreme Court

168 Ga. 321

147 S.E. 527

MILLER et al.

v.PHCENIX MUT. LIFE INS. CO.

(No. 6942.)

Supreme Court of Georgia.

March 14, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Suit by the Phœnix Mutual Life Insurance Company against Guy Miller and another. Judgment for plaintiff, and defendants bring error. Affirmed.

The Phœnix Mutual Life Insurance Company brought complaint for land against Estelle and Guy Miller, returnable to the January term, 1928, of Laurens superior court. At that term the case was marked in default. On June 9, 1928, the defendants filed their petition to establish a lost plea which they alleged they had duly filed, and to open the default upon the ground that they had filed with the clerk their plea on the first day of the appearance term. The court passed an order requiring the plaintiff to show cause, on June 16, 1928, why said default should not be opened. On that date, after hearing evidence, the court found that no plea had been filed as claimed by the defendants, and denied the motion to open the default. The defendants did not appear at the hearing, and did not except to this judgment.

On July 23, 1928, and during the July term of the court, the defendants appeared with three witnesses, and offered to show that they had filed a plea with the clerk on the first day of the appearance term of the case, and before the call of the appearance docket. They asserted that they had good title to the land, and offered to plead and proceed with the trial of the case, and to prove that they had filed a good and meritorious plea. The court refused to open the default, for the reason that the defendants were concluded by the previous judgment. The plaintiff was permitted to take judgment by default for the land in dispute. In so ruling, the judge stated that he had passed on this matter twice before, and sustained the plea of res judicata filed by the plaintiff. The defendants moved to strike this plea, because it was insufficient in law, as it was not sworn to, and because there was no law for supporting the same. The court overruled this motion. To all of said rulings the defendants excepted on the ground that they were contrary to law and without evidence to support them.

Wm. B. Kent, of Alamo, for plaintiffs in error.

R. L. Williams, Jr., of Forsyth, for defendant in error.

Syllabus Opinion by the Court.

HINES, J. 1. The terms of Laurens superior court are held for two weeks on the fourth Mondays in January, April, July, and October. Ga. L. 1911, p. 81.

2. At the trial term the judge, in his discretion, upon payment of costs, may allow a default to be opened for providential cause preventing the filing of a plea, or for excusable...