16 Ga. App. 546 | Ga. Ct. App. | 1915
. 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
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,
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
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.