6 S.E.2d 356 | Ga. Ct. App. | 1939
1. It is provided in section 32 of the act creating the city court of Rabun County "that in all cases, the judge at each term . . shall call the appearance docket upon some day previously fixed, or on the last day of the term," and where the May term, 1939, of that court convened on May 1, 1939, at which time the judge announced in open court that he would call the appearance docket for that term on May 2, at ten a. m., a case was not prematurely marked in default by the judge on that day, where the defendant had filed no demurrer, plea, answer, or other defense.
2. Section 32 of the above act further provides that "in such default cases, except as such may be founded upon unliquidated claims or demands, the judge shall thereupon at said appearance term, render judgment without the verdict of the jury," and the judge did not on May 3, 1939, improperly enter judgment against the defendant in a suit on open account for a stated balance, no demurrer, answer, plea, or other defense having been filed. *532
3. A suit against the defendant on open account for a stated balance was upon a liquidated claim.
The city court of Rabun County was created by the act of the General Assembly of this State on December 21, 1937. It is provided in section 32 of such act "that in all cases, the judge at each term . . shall call the appearance docket upon some day previously fixed, or on the last day of the term, and, upon such call, all cases in which the defendant has not filed a demurrer, plea, answer or other defense shall be marked `in default,' and in such default cases, except as such may be founded upon unliquidated claims or demands, the judge shall thereupon at said appearance term, render judgment without the verdict of the jury; and in all default cases founded upon unliquidated claims or demands, the judge shall at the request of the plaintiff hear evidence of value or less [loss?] and fix the same, and the judge shall thereupon render judgment without the verdict of a jury." Ga. L. Ex. Sess., 1937-1938, pp. 727, 740. *533
It is stated in the bill of exceptions that the return term of this case was the May term, 1939, which convened on May 1, 1939, that there was no day previously set by order of the court for the call of the appearance docket, that on the next day after the convening of the court, to wit, May 2, the appearance docket was called and the case marked in default, that on the next day, May 3, the plaintiffs presented evidence in support of their claim and the trial judge rendered judgment in their favor and against the defendant, that neither the defendant nor his counsel knew that the appearance docket would be called on such day, and that the defendant, on May 17, 1939, filed his motion to vacate such judgment on the ground that the case was marked in default before any day had been previously fixed by order of the court for the call of the appearance docket, which was contrary to the provisions of the act creating the court. The defendant also set up therein that he had a meritorious defense to the suit, a copy of which he attached to his motion, and that he had paid the costs accrued in the case.
It appears from the record and from an examination of an exhibit to the motion to vacate the judgment that the judge of the trial court on May 1, 1939, when the court convened for the May term, 1939, announced in open court that he would call the appearance docket for that term on May 2, at ten a. m. The motion was dismissed by the court on the plaintiff's general demurrer. Where there is a conflict between a recital in the bill of exceptions and the record in a case in this court, the record controls. In these circumstances, it is our opinion that the case was not prematurely marked in default.
It is further provided by the act of 1937-1938, supra, § 7, that the city court of Rabun County is a court of record. This act further provides, § 33: "That except as otherwise provided in this act, all laws and rules that are now or may hereafter be in force in the superior courts of this State, in regard to appearance and pleading, calling the appearance docket, entering the [and?] opening defaults, motions, service, waivers, acknowledgments, pleadings, trials, examination of witnesses, conduct of cases, instructions to juries, rules of evidence, answers, amendments, demurrers, pleas, procedure and practical legal remedies, the production of books, papers, etc., shall appertain in said city court." *534
The act creating the city court of Rabun County provides, as to cases founded on liquidated claims, that the "judge shall thereupon at said appearance term, render judgment without the verdict of the jury; and in all default cases founded upon unliquidated claims or demands, the judge shall at the request of the plaintiff hear evidence of value or less [loss?] and fix the same, and the judge shall thereupon render judgment without the verdict of a jury."
It is contended that the act creating the city court of Rabun County does not provide that as to unliquidated claims the plaintiff may present evidence and the judge enter judgment at the appearance term, as is provided with reference to liquidated claims, and that, in these circumstances, under the provisions of the act that the laws of this State relative to superior courts as to the calling of the appearance docket, entering and opening defaults, and entering judgments thereon as to unliquidated claims, are applicable. Code, § 110-401, provides that no trial of a case marked in default shall be had at the first term unless specially provided by law. A final judgment can not be entered, unless specially provided by law, at the first term, after entry of default. Harrell v. Davis Wagon Co.,
Assuming, but not deciding, that the above contention of the defendant that under the act creating the city court of Rabun County no evidence could be presented and judgment taken on an unliquidated claim for damages at the appearance term, it is our opinion that the suit, being upon an account for a stated balance, and no defense having been filed and the case having been marked in default, the correctness of the balance sued for by the plaintiff became established and fixed without the necessity of proof thereof by the plaintiff, and thus was liquidated as contradistinguished from unliquidated as the latter term is used in section 32 of the act creating the city court of Rabun County. See Horn v. Mound City Paint Color Co.,
In Parris v. Hightower,
It is true that there is a difference between an open account and an account stated. "An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment." Moore
v. Hendrix, 144 Ga. 646, 648 (87 S.E. 915); Heyward v.Ramsey,
In Nisbet v. Lawson,
In Norman v. Great Western Tailoring Co.,
Judgment affirmed. Felton, J., concurs. Sutton, J., concursin the judgment.