Stubbs v. Mendel

• Decision Date: 14 February 1919
• Docket Number: 939.
• Citation: 98 S.E. 476,148 Ga. 802
• Parties: STUBBS v. MENDEL ET AL.
• Court: Georgia Supreme Court

98 S.E. 476

148 Ga. 802

STUBBS v. MENDEL ET AL.

No. 939.

Supreme Court of Georgia

February 14, 1919

Syllabus by the Court.

W. B Stubbs, as administrator of R. K. Walker, filed his petition against W. K. Smith and Carl Mendel, for a reformation of deeds which the plaintiff had made to them, and later, by amendment, for rescission. Upon the call of the docket at the appearance term of the cause (October term, 1916), the case was marked in default as to W. K. Smith, and at the June term, 1917, on the 7th day of June, Smith made an oral motion that the court open the default, and that he be allowed to file his demurrer and answer; to which motion the plaintiff objected, on the grounds that it was too late to open the default, that the court had no jurisdiction to open it at that term, and that the defendant was not proceeding in the manner prescribed by the law for opening defaults. After a hearing the court passed the following order: "Upon motion of counsel for W. K. Smith, one of the defendants in the above-stated case, it appearing that at an interlocutory hearing of said case at Hinesville, Georgia, on the 18th day of September, 1916, Honorable Walter W. Sheppard, judge presiding, a demurrer and answer were filed with the court and marked 'Filed' by the court; that after argument the court took said answer and demurrer for the purpose of making a decision therein, and later forwarded the same by mail to the clerk of the superior court of Chatham county that the same were lost and never reached the office of the clerk of said court; that at the appearance term of said case default was entered: It is ordered that the default entered therein be opened, and that the copy plea and demurrer, this day tendered, be marked 'Filed' as of September 18 1916." On the trial of the case a verdict was rendered for the defendants. The plaintiff moved for a new trial. The motion was dismissed as to Smith, and overruled as to Mendel. The plaintiff excepted, assigning error upon the judgment opening the default, as well as upon the ruling on the motion for new trial.

The marking of the demurrer and answer of Smith "Filed," by the judge of another circuit on an interlocutory hearing before him in his circuit, and retaining the demurrer and answer for the purpose of making a decision in the case, and later forwarding them by mail to the clerk of the superior court, who never received them, was not a legal filing in the office of the clerk of the superior court of Chatham county. "A paper is said to be filed when it is delivered to the proper officer, and by him received, to be kept on file." Peterson v Taylor, 15 Ga. 483, 60 Am.Dec. 705; Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755.

As the demurrer and answer of Smith had not been filed at the interlocutory hearing on September 18, 1916, the court erred in ordering copies of the demurrer and plea presented at the June term, 1917, to be marked "Filed" as of September 18, 1916. "A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry cannot be made to serve the office of correcting a decision, however erroneous, or of supplying nonaction on the part of the court." Pendergrass v. Duke, 147 Ga. 10, 92 S.E. 649.

The judgment of default as to Smith was entered at the appearance term (October, 1916). The court allowed the default to be opened at the June term, 1917, which was the second term after the trial term, the terms of Chatham superior court being fixed by statute for March, June, October, and December. "At the trial term the judge in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made...