Kersey v. Barfield

MacIntyre, J. The first headnote of this case is self-explanatory. Plaintiff in error brought suit in a justice’s court upon an open account duly verified, the case being returnable to the February, 1931, term of said court. "Upon the call of the case the attorney for the plaintiff announced ready. The justice of the peace stated that the defendant had written him a note stating that she was sick and asking that the case be continued. The attorney for the plaintiff asked for a default judgment upon the ground that no defense had been filed. The justice of the peace overruled the motion and continued the case until the next term. At said term the plaintiff insisted upon his motion made at the previous term. This motion was overruled, and the defendant was allowed to file her counter-affidavit. The case then went to trial; judgment was rendered in favor of the defendant; and the plaintiff certioraried the case to the superior court. The judge of said court dismissed the certiorari, and the exception here is to this judgment. The justice of the peace was not required to continue the case under the showing made, but in so doing he did not abuse his discretion. Civil Code (1910), § 5724. The justice did not err in failing to mark the case in default and allowing the defendant to file her counter-affidavit. Hall v. Tiedeman, 141 Ga. 602 (81 S. E. 868); O’Dell v. Meacham, 114 Ga. 910 (41 S. E. 41). The judge of the superior court did not err in denying the certiorari. Judgment affirmed. Broyles, G. J., arid Guerry, J., concur,