Bowman v. Winn

Bussell, C. J. . Winn, sheriff, for the use of A. J. Evans, instituted an action in trover against Bowman to recover certain mules. The plaintiff elected to take a money verdict, and at the conclusion of the evidence the court directed a verdict for the plaintiff. There is no complaint that the amount of the verdict is not authorized by the evidence, but it is insisted, (1) that the court erred in refusing to open the default and to permit the defendant, who had filed no answer at the appearance term, to plead; (2) that the court erred in refusing to permit the defendant to cross-examine Evans, the real plaintiff, as to any fact except the value of the mules sued for; and (3) that the court erred in directing a.verdict in favor of the plaintiff, because the plaintiff failed to show that the mules belonged to Winn, sheriff, for the use of Evans, andj on the contrary, it was shown-by undisputed evidence that they were the property of A. J. Evans. 1. We do not think the court erred in refusing to open the default. Section 5656 of the Civil Code declares, that "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 for the default to be opened on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.” In this case the defendant set up, as reasons for opening the default, (1) that he was ignorant that the statute required a plea to be filed at the appearance term, and (2) that the defendant was told by Winn, sheriff, that the defendant had a good title to the mules. It is evident that the trial judge correctly sustained a de [548] murrer to these two grounds of the motion to open the default; for neither ignorance of the law nor the advice of a sheriff would excuse the defendant for failure to file his defense in time. In the third ground of the motion the defendant averred that the plaintiff’s attorney informed him, in response to an inquiry, that “there was nothing to it and it was all off,” and that by these remarks he was misled and made to believe the case would be dismissed or discontinued, and that therefore it was not necessary for him to do anything further or even to employ an attorney. The plaintiff traversed the grounds of the motion to open the default, and upon the issue thus formed the court heard evidence. The defendant testified, in effect, to the statements alleged by him to have been made by the plaintiff’s counsel, and that attorney testified, that he had never made any such statements to the defendant or to any one else; that he at one time told the defendant that he thought the defendant “had him,” but that he was going to do all he could to recover the mules. He testified that he made a proposition to give the defendant his fee, amounting to $50 or $60, in another case, if he would restore the mules to Evans, and that the defendant replied with a counter-proposition which he (the attorney) would not even consider. According to the testimony of this attorney, he never sought to advise the defendant, and did not mislead him. If the attorney made the statement which the defendant attributed to him, it would have constituted a legal fraud which might have required the court to open the default under the provisions of section 5656, supra, authorizing the opening of a default where a proper case has been made. However, the credibility of the witnesses was a matter for the court, and, it being established to the satisfaction of the trial court that the averments of that ground of the motion to open the default which set up the fraud were disproved, it can not be said that the discretion with which the court was clothed was abused. It is true this discretion should be liberally construed in promotion of truth and justice. Thompson v. Kelsey, 8 Ga. App. 23 (68 S. E. 518). The requirement as to punctuality in pleading should never be’so construed as to prevent inquiry into the real merits of a case. Bass v. Doughty, 5 Ga. App. 458 (63 S. E. 516). But since, as wás held in Brawner v. Maddox, 1 Ga. App. 337 (58 S. E. 278), every presumption is against the abuse of this discretion, [549] and the maxim lex vigilantibus non dormientibus subvenit applies in such cases, one who moves to open a default must allege and prove some reason good in law why he failed to make a defense at the time he was required by law to present it. Florida Central R. Co. v. Luke, 11 Ga. App. 293 (75 S. E. 270). The trial judge having heard evidence upon the only ground of the motion which could have entitled the movant to have the default opened, and having upon a consideration of that evidence concluded that he failed to prove this ground, and exercising, as we must assume, his undoubted prerogative to determine the credibility of the witnesses who testified, the one in support of, and the other in opposition to the motion to open the default, we can not say that he erred. In the present ease the motion was made at a term succeeding the appearance term, and the code section which we have quoted confers no authority to open defaults for reasons which fall short of a reasonable excuse, or where there is a negligent failure to answer. Brucker v. O’Connor, 115 Ga. 95 (41 S. E. 245). On the same subject see Kellam v. Todd, 114 Ga. 981, 982 (41 S. E. 39), and citations; Ingalls v. Lamar, 115 Ga. 296 (41 S. E. 573); Deering Harvester Co. v. Thompson, 116 Ga. 418 (42 S. E. 772). 2. Did the court err in refusing to permit the defendant to interrogate the witness A. J. Evans as to any fact except as to the value of the mules sued for? We think not. The petition seems to contain all the necessary and proper allegations, and, not being denied by plea, must be treated as being admitted. This left then only the question of the value of the property to be fixed by evidence. In O’Connor v. Brucker, 117 Ga. 451 (2), 452 (43 S. E. 731), which was a suit for personal injuries, where the defendant was in default, the Supreme Court held: “In view of the default, the only question that could have been considered was the amount of damages. The defendant had the right to contest this issue by rigid cross-examination or by the introduction of evidence, but had no right to extend the examination into matters of fact confessed by the failure to deny the allegations in the petition.” The present action, like the O’Connor case, is for a tort, and it would seem that the rule should not be more rigid in an action for personal injuries than in an action in trover. The question of the extent to which inquiry into testimony affecting the merits of a case is allowable to a defendant who is in default in various actions [550] is discussed in Durden v. Carhart, 41 Ga. 76, 81; Craig v. Pope, 48 Ga. 551; Hayden v. Johnson, 59 Ga. 106; Stephens v. Gate City Gas Light Co., 81 Ga. 150 (6 S. E. 838); Davis v. Wimberly, 86 Ga. 46 (12 S. E. 208); Phillips v. Collier, 87 Ga. 66 (13 S. E. 260); and upon consideration of these decisions, and under the controlling authority of the ruling in O’Connor v. Brucker, supra, we conclude that the trial judge correctly restricted the defendant’s inquiry to the single question as to the value of the mules. 3. If proof that the mules in question were the property of A. J. Evans would not have authorized a jury to find for the defendant, because the suit was proceeding in the name of Winn, sheriff, for the use of A. J. Evans, then the court would have erred in directing a verdict. ' On the other hand, if the uncontradicted evidence of A. J. Evans that the mules for the recovery of which the sheriff had instituted an action in behalf of the witness demanded a verdict for the plaintiff, the fact that a verdict was directed would afford no ground for reversal. The witness Evans was the real party in the case. The sheriff was a mere nominal party, confessedly bringing the suit for the use of Evans. It does not appear from the evidence that the nominal party had any actual interest in the property, and the proof that Evans was the true owner of the property not only supported the allegations of the petition, but demanded the finding reached. Upon the coming in of the evidence that the real plaintiff, and not the nominal plaintiff, was the owner of the property sued for, the petition might have been amended by striking the name of the nominal party plaintiff from the action. Civil Code, § 5690. But, in any event, the failure to make this amendment, even if it was necessary, wa's cured by verdict. We hardly think it was necessary, because the allegation that Winn, sheriff, was suing for the use of Evans naturally implied that Evans was the real owner of the property. Judgment affirmed.