Manry v. Twitty

Lumpkin, J. ■ (After stating the foregoing facts.) It is not altogether clear whether the presiding judge intended his order to operate as a dismissal, on demurrer, of the motion to open the default, or as a refusal of the motion upon the facts presented both by the pleadings and evidence. The order stated that the demurrer was sustained, but also added that the motion-to open the default was refused and denied. But in whichever light it be regarded, it must be affirmed; because neither on the face of the application, nor with the addition of the facts disclosed by the evidence, was the movant entitled to have the default opened. If the records of the court be considered in connection with the motion, it appears that the suit was brought to the October term, 1907, of the court of the county in which the defendants resided, as well as where the land lay; that the term of the court met on October 21, and continued for five days, when it was adjourned until the 20th of January following, and remained in [481] session until January 28; and that the judgment of default was not entered until during- the adjourned term, There is no evidence that during all that time Manry was sick or unable to attend court; nor is there anything to show why the defense could not have been filed during this period of about three months after the commencement of the return term; nor is any reason shown why his being sick, so that he could not attend court, rendered it impossible, on even difficult, for him or his attorneys to file a defense. If the evidence be not considered, but only the written motion to open the default, it failed to state a case which would entitle the movant to have the application granted. On the face of the petition or motion it was alleged that the defendants in the suit to recover the land were duly served and knew that the October term, 1907, was the return term at which they must plead; that Manry, on behalf of himself and wife, employed a firm of attorneys, delivered to them the copies of the petition and process which had been served on the defendants, together with their title to the land, made to the attorneys a full and complete statement of the status, and directed them to file a defense at the return term. The only excuse for the failure to plead was that at the October term “defendant, W. H. Manry, was sick and unable to attend court, and his attorneys, not finding him here, did not file defense to said case.” Immediately after this statement followed the allegation, that, “when the October term, 1907, of said court convened, which was the return term of said case, petitioner, W. H. Manry, was not physically able to attend said court,'but thought that said attorneys whom they had employed to file their defense would attend to the same. Defendant, W. H. Manry, would have been present at this term of the court had he not been sick.” The petition does not allege that Manry was sick at the time when the default was entered, and fails to allege when such entry was made. The evidence which the judge admitted may furnish the reason for this omission. But on the face of the motion the entire failure to state the character of his malady, or how serious it was, or how long it continued, or that it existed when the default was entered, is significant. If, as he alleged, he had attorneys, and furnished to them all the information and data necessary for the filing of an answer, and instructed them to do so, it is not apparent how his absence from court caused a failure to plead at the proper [482] time, or why his presence at court was necessary at ail for the purpose of filing an answer. It may indeed be conjectured that possibly the payment of a retainer required by his attorneys, or the performance of some other act not disclosed in his pleadings, was necessary as a condition precedent to his having a right to rely upon their representing him and filing pleadings on his behalf. But the causal connection between his absence from court and the absence from file of an answer in due time is left to surmise. When the ánswer to the original suit which Manry now proposes to file is inspected, the fact that his presence for the mere purpose of filing it was unnecessary is patent. .It was not required to be verified. It consists of less than half a page of typewritten matter, in which he admits that he is in possession of the land and refuses to deliver it to the plaintiff, and denies that the plaintiff is the owner of it or is entitled to it, or that the defendant has received mesne profits of the yearly value alleged by the plaintiff. To this is added the following statement: “Defendant, W. H. Manry, claims title to said land under bond for title from H. H. Merritt, made March 1, 1908.” It needs no. argument to show that Manry’s sickness when the October term of the court convened furnished no reason why such an answer could not have been filed before the call of the docket and the entry of the default at some time during that term. The defendant took no action until the April adjourned term, 1908, which was held on July 23, eight months after the convening of the October term 1907, when he made his motion to open the default, alleging that he had come prepared to try the case. Neither the allegations nor the evidence (if considered) showed any ground requiring the opening of the default “for providential cause preventing the filing of a plea, or for excusable negligence.” The presiding judge correctly declined to open it. Civil Code, 1895, §5072; Moore v. Kelly & Jones Co., 109 Ga. 799 (35 S. E. 168); Ingalls v. Lamar, 115 Ga. 296 (41 S. E. 573); Brucker v. O’Connor, 115 Ga. 96 (41 S. E. 245); Kellam v. Todd, 114 Ga. 983 (41 S. E. 39). It was not contended that there was any error which infected the final judgment, except the refusal to open the default. Judgment affirmed. All the Justices concur.