Pitts v. Wheeler, 1836

1836 | Ga. Ct. App. | Oct 5, 1909

Russell, J.

This is a suit on a promissory note, filed in the city court of Covington. The case was returnable to the March term, 1909, the first day of the term beginning March 3. The defendant did not answer on or before that day; but on March 4, the second day of the term, he filed an answer; and the judge, at the call of the appearance docket, marked thereon “answered.’’ When the judge had finished calling the appearance docket, the plaintiff moved to strike the answer, on the ground, among others, that it had not been filed in time. The judge struck the answer on this ground, and entered up judgment for the plaintiff. The defendant excepts.

The act creating the city court of Covington (Georgia Laws 1907, p. 146, see. 7), provides that “the defendant shall file his defense on or before the first day of the first term.” The answer was not filed until the second day of the term, and, under the decision of the Supreme Court in the case of Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (41 S.E. 54" court="Ga." date_filed="1902-03-12" href="https://app.midpage.ai/document/dodson-printers-supply-co-v-harris-5571509?utm_source=webapp" opinion_id="5571509">41 S. E. 54), the judge had no power to allow it filed after that time. This ease is distinguishable from Lippman v. Ætna Ins. Co., 120 Ga. 247 (47 S.E. 593" court="Ga." date_filed="1904-05-14" href="https://app.midpage.ai/document/lippman-v-ætna-insurance-5573384?utm_source=webapp" opinion_id="5573384">47 S. E. 593), on the ground that the plaintiff here did not waive the failure to file on the first day of the term; and is distinguishable from Bass v. Doughty, 5 Ga. App. 458 (63 S.E. 516" court="Ga. Ct. App." date_filed="1909-01-27" href="https://app.midpage.ai/document/bass-v-doughty-5603411?utm_source=webapp" opinion_id="5603411">63 S. E. 516), on the ground that-the act creating the city court of Bainbridge is materially different from the act involved in this case. Judgment affirmed.