118 Ga. 831 | Ga. | 1903
Suit was brought in the city court of Macon to the March term, 1902, which began on March 3. The appearance docket was called on March 15, which was the second Saturday in the term, and, no defense having been filed, the case was marked “in default.” On March 21, final judgment was rendered. On April 12, during the term, a motion was made to open the default and set aside the judgment. At the same time the defendants filed a traverse of the sheriff’s return of service as to one of
There was no error in refusing to open the default. Under the law regulating the practice in the city court of Macon, the second Saturday in each term is fixed as the time for filing defenses in suits brought to that term. The appearance docket is required to be called on or after the second Saturday of the term. In cases where no defense is filed prior to the time above referred to, the judge, on the call of the appearance docket, is required to mark the same “ in default.” All cases so marked are ripe for trial and final judgment at the first term; and it is distinctly provided that “ after the rendition of final judgment in a case so marked in default, all right of opening such default shall terminate.” Acts 1900, p. 147.
Even if the provision of the Civil Code, § 5070, providing that defaults may be opened in the superior court at any time within thirty days after the entry of default, is applicable to any case brought in the city court of Macon, they have no application to a case where final judgment has been rendered.' See, in this connection, Mathews v. Bishop, 106 Ga. 564; Dodson Company v. Harris, 114 Ga. 966, 969. Treated as a motion to open the default, the motion filed by the defendants was without merit; and treated as a motion to set aside the judgment, it was also without merit, because no sufficient reason was given for vacating the judgment.
The fact that the case was in default constituted no sufficient reason for striking the traverse to the sheriff’s return of service. Kahn v. Southern B. & L. Ass’n, 115 Ga. 459. But there was in the traverse no prayer that the officer making the entry should be made a party, nor does the record disclose that he was given any notice of the filing of the traverse. There was therefore no error in striking the traverse. Civil Code, § 4988; Southern Railway Company v. Cook, 106 Ga. 450(2), 453, and cit.; Parker v. Medlock, 117 Ga. 813.
Judgment affirmed.
