96 Ga. 601 | Ga. | 1895
The official report of the facts of this case is sufficiently full. The plaintiff in error insists that the court erred in overruling her motion to set aside the judgment of foreclosure, upon two grounds. 1st: Because the judgment absolute was prematurely granted. 2d: Because, under the practice of long standing in Glynn superior court*the case should have been first “assigned,” before final judgment. The determination of the first ground depends upon the construction to be given sections 3962 and 3964 of the code. The first provides, that upon the filing of a petition to foreclose a mortgage on realty, “the court shall grant a rule, directing the principal, interest and costs to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted.” The “rule msi” requires the defendant to pay into court the demand of the plaintiff on or before the first day of the next term, — a copy of which rule is duly served upon the defendant. The defendant is thus put upon notice that unless he shows a valid reason why the demand of the plaintiff should not be allowed, the court will enter
As to the second contention of the plaintiff’in eri’or, viz: that the judgment should have been set aside because this ease had not first been assigned for trial upon a day certain, we think that too is without merit. From the bill of exceptions it does not appear that cases in which no issue had been formed had ever been “assigned” in Glynn superior court. Only litigated cases were so treated. This case was in default the moment when called and no defense filed. It would not, therefore, fall within the rule contended for by plaintiff' in error. For these reasons, we do not think the court below erred in refusing to open the default, or to set the plaintiff’s judgment aside. Judgment affirmed.