Miller v. Phoenix Mut. Life Ins. Co.

• Decision Date: 14 March 1929
• Docket Number: 6942.
• Citation: 147 S.E. 527,168 Ga. 321
• Parties: MILLER et al. v. PH×NIX MUT. LIFE INS. CO.
• Court: Georgia Supreme Court

147 S.E. 527

168 Ga. 321

MILLER et al. v. PH×NIX MUT. LIFE INS. CO.

No. 6942.

Supreme Court of Georgia

March 14, 1929

Syllabus by Editorial Staff.

Under Civ. Code 1910, § 5656, authorizing trial judge to open default in his discretion on payment of costs for providential cause preventing filing of plea, excusable negligence, or for proper cause, payment of costs was mandatory requirement, and, if not paid, judgment for plaintiff may be rendered by court.

Courts are without jurisdiction to open judgment by default after trial term has passed, although court may not be held at trial term.

Under Civ. Code 1910, § 4335, judgment refusing, on motion of defendants, to open default judgment, concludes defendants as to second motion based on same ground, although defendants may not have been present when first motion was heard and judgment was rendered.

Where case was marked in default at January term of Laurens superior court held for two weeks on fourth Mondays in January, April, July, and October under Laws 1911, p. 81, and motion to open default for lost plea was denied at hearing held June 16 at which defendants did not appear nor except to judgment, denial of second motion to open default, made during July term, for same reason as first motion, on ground that defendants were concluded by previous judgment denying motion to open default, was proper under Civ. Code 1910, § 4335.

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

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

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

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

Syllabus OPINION.

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 negligence, or where the judge, from all the facts, shall determine that a proper cause has been made for the default to be opened on terms to be fixed by the court. Civil Code 1910, § 5656.

3. Payment of costs is a mandatory requirement of this section and, if not paid, judgment for the plaintiff may be rendered by the court. Coker & Son v. Lipscomb, 17 Ga.App 506, 87 S.E. 704. The...