Whitsett v. Hester-Bowman Enterprises, Inc., HESTER-BOWMAN
| Decision Date | 01 May 1956 |
| Docket Number | HESTER-BOWMAN,No. 36083,No. 1,36083,1 |
| Citation | 93 S.E.2d 788,94 Ga.App. 78 |
| Parties | Mrs. Willow WHITSETT v.ENTERPRISES, Incorporated, et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The trial court did not err in denying the plaintiff's motion to strike the defendant's pleadings on the ground that the defendant had not complied with the provisions of Code (Ann.Supp.) § 110-401 as to opening of defaults.
2. The trial court erred in sustaining the general demurrers to the petition.
Mrs. Willow Whitsett brought an action against Hester-Bowman Enterprises, Inc., and Harvey Hester in which she sought to recover for injuries received when she fell on premises operated by the defendant corporation as a restaurant. The defendants were served by a deputy sheriff of Cobb County, Georgia, on July 8, 1954. No answer, or other defensive pleadings, were filed prior to the appearance day, August 7, 1954. Thereafter, on August 17, 1954, the judge of the trial court issued an order which read in part as follows: Thereafter the defendants filed defensive pleadings including general and special demurrers. On November 7, 1955, the plaintiff filed a motion to strike the order of the court opening the default and the defensive pleadings, which the trial court, after hearing argument, denied on December 2, 1955. On this same day the trial court sustained the defendants' general demurrers to the petition. The plaintiff excepts to the judgment of the trial court denying her motion to strike, and to the judgment of the trial court sustaining the defendants' general demurrers.
Davis & Friedin, Vienna, for plaintiff in error.
Lokey & Bowden, Atlanta, Scott S. Edwards, Jr., Marietta, for defendant in error.
1. The plaintiff in error strongly contends that she was entitled to judgment by default against both defendants because the trial court erred in refusing to strike the defensive pleadings filed after the case became in default.
Under the Act of 1946, Code Ann.Supp. §§ 110-401 and 110-404, a case to which no defensive pleadings are filed becomes automatically in default on its appearance day. The defendant may, within a 15-day period after the appearance day, automatically reopen the default by paying the costs and filing his defensive pleadings. After such 15-day period has elapsed the defendant may still open the default upon payment of costs providing the court in its discretion 'from all the facts shall determine that a proper case has been made for the default to be opened,' where the defendant also offers to plead instanter and announces ready for trial. Under the law prior to the amendment of 1946, where no entry of default has been made on the docket the court may, at a subsequent term, permit the plea to be filed at any time before such entry has been made. Buttersworth v. Swint, 53 Ga.App. 602, 186 S.E. 770. Accordingly one effect of the 1946 act was to make it unnecessary for the trial court to enter up an order allowing the defendant to file pleas within such 15-day period. Another effect was to make it unnecessary for a 'default' to be entered on the docket in order for the case to become automatically in default. Prior to that time, where there was no entry on the docket, the time for filing pleas was thereby prolonged. Gregg v. Fitzpatrick, 54 Ga.App. 303, 187 S.E. 730.
The petition here became automatically in default when the appearance day passed without the filing of defensive pleadings. Thereafter, during the 15-day period when the defendant might as a matter of right open the default by paying costs, he did so. The order of court, obtained ex parte, to the effect that 'defendants have paid all costs and have offered to file defensive pleadings within 15 days', and the judgment that the 'default is hereby opened and defendants are authorized to herewith file defensive pleadings' was unnecessary and unauthorized under the new rules of procedure. The court now has no discretion, and accordingly no jurisdiction to decide the issue of whether or not the defendant may file defensive pleadings within such 15-day period, except that the court, in the exercise of his inherent power, would be the arbiter in case of dispute as to whether or not the costs had been paid. Whether this lack of jurisdiction on the part of the court to decide whether or not defensive pleadings may be filed within this period would result in the ex parte order entered up by him being entirely void it is not necessary to decide here, however, for the reason that the same result would have been reached whether the order had been entered or not.
Several terms later the plaintiff moved to strike from the docket the defensive pleadings on the ground that all the costs had not been paid and the default, in consequence, had not been legally opened by the defendant. Testimony was heard on this motion. The clerk testified 'that he computed the costs and ascertained that $9 was all the costs due in the said case, that he knew of no other costs due and chargeable at that time in said case; the said $9 was paid.'
While not 'collecting officers,' Lewis v. Smith, 99 Ga. 603, 27 S.E. 162, superior courts are by law charged with the duty of receiving the amounts of all costs due in the court of which they are clerks. Code, § 24-2720(2). They are charged with the duty of charging and collecting the fees prescribed by law in Code, § 24-2727. Under common...
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