Mut. Ben. Health & Accident Ass'n v. White

• Decision Date: 20 December 1933
• Docket Number: No. 23527.,23527.
• Court: Georgia Court of Appeals
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N. v. WHITE.

48 Ga.App. 146

172 S.E. 92

MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

v.WHITE.

No. 23527.

Court of Appeals of Georgia,

Division No. 2.

Dec. 20, 1933.

Syllabus by the Court.

The object and purpose of process is to bring the defendant into court, and a defendant is not required to appear and answer before the return or appearance term, as fixed by the original process attached to the petition and the copy process served on him. An entry of default before the appearance term fixed by the process is premature, and should be set aside and vacated upon proper motion of the defendant.

Error from Superior Court, Hall County; B, P. Gaillard, Jr., Judge.

Suit by Mary White against the Mutual Benefit Health & Accident Association. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Little; Powell, Reid & Goldstein, of Atlanta, and J. B. Jones and Joseph H. Blackshear, both of Gainesville, for plaintiff in error.

Wheeler & Kenyon, of Gainesville, for defendant in error.

SUTTON, Judge.

On June 18, 1932, plaintiff filed suit in Hall superior court against the defendant insur ance company, and service was perfected up-on the defendant that day. The next term of the court met on the third Monday in July,

1932, which was more than twenty days after the filing of the petition. The petition prayed that process issue requiring the defendant to appear at the next term of said court The original process attached to the petition and the copy thereof served on the defendant, required the defendant to appear at the next superior court to be held in Hall county on the first Monday in November next The clerk entered the case on the appearance docket for the November term, 1932. Upon the call of the appearance docket at the July term, 1932, there being no appearance for the defendant, the court marked the case in default. At the November tenn, 1932, the defendant appeared and made proper application to remove the case to the federal court, and the judge of the superior court granted an order removing the case. On March 31,

1933, the federal court remanded the case to the superior court, on the ground that it was not removed within the time required by law. At the May term, 1933, the first term of the superior court after the case was remanded, the defendant presented a motion to set aside and vacate the entry of default, and paid the cost, offered to plead a meritorious defense instanter, and announced ready to proceed with the trial. The court disallowed this motion, and to this judgment the defendant excepted pendente lite, and assigns error on such exceptions in the present bill of exceptions. The court proceeded to hear the evidence of the plaintiff, and U] on the conclusion thereof directed a verdict for the plaintiff. The defendant moved for a new trial, the motion was overruled, and to this judgment it excepts.

"To every petition the clerk shall annex a process » * * requiring the appearance of the defendant at the return term of the court." Civil Code (1910), § 5552. The object and purpose of the process is to bring the defendant into court. Gay v. Cheney, 58 Oa. 304; Neal-Millard Co. v. Owens, 115 Ga. 959, 42 S. E. 200. "In all cases where the defendant has been served with petition and process, he shall appear at the court to which such process is made returnable, and make his defense." Civ. Code (1910), § 5635. The answer must be filed on or before the last day of the term to which process is returnable. Camp v. Wallace, 61 Ga. 497; Johnson v. Ballingall, 1 Ga. 68. "Where the statute allows the defendant in an action at law to appear and answer on or before the first day of the term to which the process is returnable, " an entry of default before that time "was prematurely made." Ashburn Auto Co. v. Black, 12 Ga. App. 754, 78 S. E. 470. Under none of the Statutes regulating the time for appearance and defense by a defendant who has beenlawfully served with process is he required to appear before the return terra fixed by the process. The statutes will not be construed to compel the appearance of the defendant before the appearance term named in the original process. Spence v. Manufacturers' Finance Acc. Corp. (Ga. App.) 170 S. E. 533 "Although the plaintiff's petition prayed for process returnable to the January term of the city court, and was backed, numbered, and docketed accordingly, yet, as the process itself and the copy process served upon the defendant required him to appear and answer at the next ensuing March term, the case could not, as to him, be treated as returnable to the January term." Welch v. Singleton, 95 Ga. 519, 20 S. E. 496. The original and copy process in this case each required the defendant to appear at the November term, 1932, of the court, and the case was docketed to this term. There was no irregularity in this respect and nothing to indicate that the defendant should appear at the July term, 1982. In these circumstances the appearance term of the case was the return term fixed by the process, and the defendant was not required to appear before that time to answer the plaintiff's complaint. It is our opinion that the court erred in marking the cause in default at...