Daniel v. Nixon & Wright

Jenkins, J. (After stating the foregoing facts.) There is no controversy between counsel .upon the proposition that the city court of Millen was without power to enter judgments of default. This is conceded by counsel on both sides. The provisions of the Civil Code (1910), § 5656, relative to the opening of default at the trial term, on cause shown, do not have application to suits in those courts wherein judgment may be taken at the first term. Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (93 S. E. 530); Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915). Even in a suit where a default judgment might be legally entered, it has been held that when there was a failure to do so, it was error, on the call of. the case for trial, to strike a plea filed at a subsequent term, as being too late. Glass v. Allen, 141 Ga. 30 (80 S. E. 284); Hall v. Tiedeman, 141 Ga. 602 (80 S. E. 868). The judgment of the trial court marking, the present case “in default”' being unauthorized, it seems clear that the defendant would be entitled subsequently to file her defense, prior to judgment, unless there was some provision in the act creating the court, or, in the absence of such a provision, some rule promulgated by the court itself, limiting the time of such filing. If this were the case, and if the act or rule specified and limited the time in which the plea must be filed, effect must be given to that requirement, and a plea entered after the time so allowed would be too late. Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (2) (41 S. E. 54); Cheatham v. Brown-Catlett Furniture Co., 118 Ga. 420 (45 S. E. 399); Pitts v. Wheeler, 6 Ga. App. 720 (65 S. E. 689); Beacham v. Kea, 118 Ga. 406 (45 S. E. 398). There is, however, in the act creating the court no limitation of the time when the answer must be filed, although the act does provide that if no defense is filed under the rules governing in the superior court, final judgment may be taken on the call of the case at the appearance term. The [209] failure to make answer on such call is at 'the peril of defendant, and upon such failure final judgment may be entered. This does not mean, however, that it must be entered. Bass v. Doughty, 5 Ga. App. 458, 460 (63 S. E. 516). The record precludes the assumption made by the Supreme Court in the Beacham case, supra, that there must have been a rule of court so limiting the time, since in this case the motion to strike is specifically based upon the ground that the plea was not filed within the time allowed under the act creating the court. Judgment might have been taken at the first term, but, since it was not taken then, and since, as is conceded, the judgment of default then entered was unauthorized, and since there is no law or rulé limiting the time when the plea shall be filed, but merely a provision of law which renders the defendant liable to be cut off by final judgment at the first term if the plea be not then filed, we think the court in this case should have allowed the defendant to file the proffered answer, in order that its merits could be passed upon. Judgment reversed. Wade, G. J., and Dulce, J., concur.