Fraser v. Neese

Atkinsojt, J. 1. If on the call of the appearance docket at the appearance term a case is called in which the defendant has filed no demurrer, plea, or answer, and the judge marks the case on the docket “in default,” such entry by the judge on the docket is a judgment that the case is in [844] default. Love v. National Liberty Insurance Co., 157 Ga. 259, 262 (121 S. E. 648) ; Civil Code (1910), § 5653. 2. If after sueli entry by the judge the clerk of the court during the same term, without direction or authority from the judge, erases the entry “in default” on the docket by drawing a line through it, such action upon the part of the clerk should be treated as a mere clerical act insufficient in law to modify or alter the default judgment entered by the judge. 3. If, after the clerk has so marked the entry on the docket, the judge, at a term subsequent to the trial term, passes an ex parte order directing the clerk to re-enter upon the docket the entry “in default,” and the clerk executes the order, whether or not such action by the judge is irregular as having been done without affording the defendant a hearing, or for other cause, such order and such re-entry would not destroy or modify the binding effect of the original default entry made by the judge. 4. Where the clerk has erased the default entry by the judge on the appearance docket, as referred to in the preceding notes, the facts may be shown by extraneous evidence explanatory of the entry and erasure on the docket, and that the act of the clerk was "by his mistake. The uncontradicted evidence showed that the mutilation of the docket occurred in the manner as above mentioned. 5. The suit was instituted July 16, 1925, and made returnable to the September term, which convened on the first Monday in that month. On September 16j 1925, the plaintiff and defendant stipulated in writing that “The present status of the said suit . . shall remain imchanged, and it shall not be necessary for the present for Walter B. Eraser [defendant] to file any pleadings in said ease, it being understood that no default will be entered in said case until after the expiration of ninety days from this date. . . After the expiration of ninety days, as hereinabove provided,” plaintiff “shall be at liberty to prosecute said suit,” the defendant “having the right to file and urge any defense thereto that he might have as of this date.” The judge fixed September 28, 1925, as the day for calling the appearance docket. The attorneys for neither of the parties attended the call of the docket. The judge, being unadvised as to the stipulation between the parties, called the case, and, there being no demurrer, plea, answer or other defense filed, marked the case “in default.” The ninety days referred to in the stipulation expired December 16, which was during the November or trial term of court. On January 4, which was the first day of the January 'term, the judge under an ex parte order caused the clerk to re-enter upon the docket the entry “in default,” and allowed the plaintiff to proceed and take a verdict without any appearance by the defendant. On January 25, the defendant made a motion to set aside the verdict and to open or modify the default. The motion was overruled. Held: (а) The ex parte order of the court and the re-entry on the docket by the clerk were wholly unnecessary, but not harmful to the defendant. (б) The private stipulation between the parties was not binding on the court, or operative as extending the time provided by statute for filing a defense. (c) It was the duty of the defendant to look to the docket for the status [845] of tlie case against him. Fitzgerald v. Ferran, 158 Ga. 755 (124 S. E. 530). Nos. 5432, 5433, February 25, 1927. Rehearing denied March 3, 1927. (d) If the defendant desired to avail himself of the plaintiff’s agreement as expressed in tlie stipulation, it was incumbent on tlie defendant to appear at tlie appearance call of tlie docket and apply for and obtain , an order extending the time in which to file his defense. Where Ik failed to do so and the case was regularly marked “in default” by the judge, and the defendant did not during the appearance term apply to the court in the exercise of its inherent power to open the default (Chero-Cola Bottling Co. v. Southern Express Co., 150 Ga. 430, 104 S. E. 233), and did not within thirty days after the entry of default apply to open the default under the provisions of the Civil Code (1910), § 5654, and did not, at the November term, which was the trial term, and during which the ninety days specified in the stipulation expired, make a motion to open the default under the provisions of § 5656, the judge whs without jurisdiction at the next succeeding term to open the default (Caldwell v. Freeman, 146 Ga. 469, 91 S. E. 544; Avery v. Sorrell, 157 Ga. 476, 121 S. E. 828), and did not err in refusing to set aside the default judgment on the basis of the. private stipulation between tlie parties. 6. On tlie defendant’s motion referred to in the preceding division, the judge set aside the verdict and accorded another trial restricted to a determination of the plaintiff’s damages. On the trial that ensued the judge directed a verdict for the plaintiff for a stated amount that was less than,the amount that was alleged in the petition to be due. Held, that the uneontradieted evidence authorized this direction. 7. Assignments of error not argued or insisted upon in the brief of the attorneys for the plaintiff in error are treated as abandoned. Judgment affi/rmed on the main bill of exceptions. Cross-bill dismissed. All the Justices concur, except Hill, J., absent for providential cause. Winfield P. Jones and King, Spalding, MacDougald & Sibley, for Fraser. Dorsey, Howell & Heypnan, contra.