158 Ga. 755 | Ga. | 1924
(After stating the foregoing facts.) We are of the opinion that the exceptions contained in the cross-bill of exceptions are well taken. The suit by Mrs. Ferran against Mrs. Fitzgerald had been marked in default. The defendant’s allegations of the negotiations upon the part of the defendant by her agent to settle and pay the note due" at the time of filing the suit, and of the negotiations between defendant’s agent and Paxson, are vague and indefinite. There was no distinct promise upon Paxson’s part not to proceed with the suit alleged. It is provided in the Civil Code, § 5653, that the judge at each term of the court 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 or answer or other defense shall be marked “In default.” This case was called and marked “In default.” In section 5654 it is provided: “At any time within thirty days after the entry of ‘default,’ the defendant, upon payment of all costs which have accrued, shall be allowed to open the default and file his defense by demurrer, plea, or answer.” The defendant did not take advantage of this
We apply the rule stated less reluctantly, as it appears, from other pleadings and exhibits thereto filed subsequently, that the plea is not a meritorious one, and that there is no merit in the contention that the clause in the notes accelerating the maturity of all the notes in cake of a failure to pay the first one on the date of maturity was inserted without her knowledge or by her agent without notice to her and without authority on the part of her agent to make the insertion. She received a bond for title to the land and went into possession of the land under this bond for title, and this clause is contained in the bond for title, and she is presumed to have had notice of it. She went into possession of
We are of the opinion that the court erred, upon the submission of the plea and answer, in opening the default. The judgment of the court below allowing the default to be opened and the plea filed is reversed. Having reversed the judgment on this exception contained in the cross-bill of exceptions, it is unnecessary to consider the exceptions in the main bill of exceptions. The main bill of exceptions will accordingly be dismissed.
Judgment reversed on the cross-hill of exceptions; main hill of exceptions dismissed.