Rakestraw v. Hamby, 42903
| Decision Date | 12 June 1967 |
| Docket Number | No. 1,No. 42903,42903,1 |
| Parties | Harley D. RAKESTRAW et al. v. Lee HAMBY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
There is no error in permitting the plaintiff in a suit on open account to produce evidence before a jury and take a verdict when, upon a regular call of the case the defendant, though having demurred to and answered the petition, failed to appear in person or by attorney to defend or to move for a continuance upon some legal ground.
Lee Hamby brought suit on open account against Rakestraw & Hay, filing his action on July 22, 1966, in the Civil and Criminal Court of Cobb County. It was duly served, and thereafter the defendants demurred generally and specially and answered, denying the indebtedness for reasons stated in the answer. It appears that an order was entered on the demurrers October 20, 1966, though the order is not brought up in this record. However, it appears that the plaintiff amended his petition December 5, and thereafter the case was assigned for trial on February 13, 1967. When the case was reached upon call of the calendar in regular order, plaintiff answered 'ready,' but there was no appearance by or on behalf of the defendants. The court waited for three minutes after the call, as provided in Code § 24-3341, and, when there was still no response by or on behalf of the defendants, and no motion for any continuance made or having been made, permitted the plaintiff to proceed before a jury to prove his case and obtain a verdict. Judgment was entered on the verdict and in due course execution issued, after which on March 14, 1967, plaintiff's counsel served interrogatories on the defendants, as authorized by the Deposition and Discovery Act (Code Ann. § 38-1201 et seq.) seeking information as to what money, property or sources of income the defendants might have from which the fi.fa. could be satisfied. Objections were filed April 13, 1967 to the interrogatories, and on April 28, 1967 defendants filed in Cobb Superior Court a motion to set aside the judgment which plaintiff had obtained in the Civil and Criminal Court, alleging it to be 'void on its face' because under the provisions of Code § 24-3341, the court should have stricken the defendants' answer and entered a default judgment for the plaintiff instead of permitting him to prove his case before a jury and obtain a verdict.
From a dismissal of the Motion to set aside (on oral motion) defendants appeal.
Payne, Barlow & Green, William O. Green, Jr., Austell, for appellants. L. S. Cobb, Doyle C. Brown, Marietta, for appellee.
1. Although the motion to set aside was brought in Cobb Superior Court because 'the Civil and Criminal Court of Cobb County is a court of limited jurisdiction and for want of power cannot afford full relief to (movan...
To continue reading
Request your trial
-
Perry v. Dudley
...resulted in the striking of his counterclaim. See McFarland v. State, 134 Ga.App. 470, 214 S.E.2d 721 (1975); Rakestraw v. Hamby, 115 Ga.App. 868(2), 156 S.E.2d 308 (1967). Under the relation-back provisions of CPA § 15(c), Code Ann. § 81A-115(c) (Ga.L.1966, pp. 609, 627, as amended), the a......
-
Johnson v. Cook, 48433
...rendered that section substantially identical to the present § 81A-155(b). Under the former, this court held in Rakestraw v. Hamby, 115 Ga.App. 868, 156 S.E.2d 308, that while the court might have stricken the defendant's answer and entered a default judgment against him upon his failure to......
- Cleveland Ave. Liquor Store, Inc. v. Home Ins. Co., 42838
-
Hyman v. Aiken
...the evidence presented by the plaintiff, the court entered judgment against the defendant. This was not error. See Rakestraw v. Hamby, 115 Ga.App. 868, 870(2), 156 S.E.2d 308; Jones v. Christian, 165 Ga.App. 165, 300 S.E.2d 1; Martin v. Foxboro Co., 149 Ga.App. 719, 720(2), 256 S.E.2d 34. S......