Southern Express Co. v. Chero-Cola Bottling Co., 24 Ga. App. 189

Southern Express Co. v. Chero-Cola Bottling Co.

24 Ga. App. 189 | Ga. Ct. App. | 1919

Lead Opinion

Stephens, J.

Upon the call of the appearance docket an entry was made thereon by the trial judge, “In default April 27, 1918.” Later in the day a plea was filed, the attorney for the plaintiff notified thereof, and the entry of “in default” erased by the trial judge, and an entry made by him, “Plea filed April 27th, 1918.” Entries made by the judge on the docket are a part of the proceedings in the case. Brady v. Little, 21 Ga. 132 (4), 135 (4). At the trial term a motion was made to strike the plea because at the time it was filed the case was in default and the judge had erred in striking the entry “in default” and marking “plea filed.” While sections 5654 and 5656 of the Civil Code of 1910 provide a way in which defaults may be opened, yet where the method provided by these sections is not followed and the default is set aside and a new entry made, what is the remedy of the plaintiff? He must either except to the erroneous striking of the first entry, or he must file a direct proceeding to “vacate or reform” the second entry. To the judgment erasing “in default” there was no excep*193tion. The motion to strike the plea was not a “direct proceeding to vacate or reform” the entry of “plea filed.” “Entries appropriately made upon the dockets of the superior courts during the pendency of causes, by judges presiding therein, are presumed to represent, truthfully the incidents occurring in the course of litigation; and so long as such entries stand unchallenged by direct proceedings to vacate or reform them, they are not open to collateral explanation or attack.” Thornton v. Perry, 101 Ga. 608 (29 S. E. 24); Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Saffold v. Banks, 69 Ga. 290 (5-a); Smith v. Merchants &c. Bank, 22 Ga. App. 505 (96 S. E. 342). The practice in the city court of Carrollton is the stare as in the superior courts of this State. Ga. L. 1897, p. 438, §§ 13, 17. The only entry on the docket at the trial term being that of “plea filed,” and there being no direct proceedings to vacate or reform this entry, the judge properly refused to strike the plea. In addition it will be noticed that both entries above discussed were made on the same day, and our Supreme Court has said: “At all events a case is not in default unless so entered on the docket by the judge-; and where the entry is marked off or defaced by the judge on the day the appearance docket is called, such marred entry should not have the effect of an Tn default’ judgment. The presumption is that the case was not in default, but that the entry was heedlessly made by the judge through mistake, and that he disfigured the entry with his pen in order to correct his mistake.” Albany Pine Products Co. v. Hercules Mfg. Co., supra.

3. The court erred in admitting, over the defendant’s objections, the two letters set forth in the bill of exceptions.

3. The evidence, with the letters above eliminated, did not demand a finding for the plaintiff, and the court erred in directing a verdict for that party.

Judgment on the main bill of exceptions reven-scd; on the cross-bill affb'med.

Bloodworth, J., concurs. Broyles, P. J., dissents.

Dissenting Opinion

Broyles, P. J.,

dissenting. At the trial term, upon the hearing of the motion to strike the defendant’s plea from the files of the court, the undisputed evidence, which was admitted without objection, showed'the following facts: The case was returnable to tire March term, 1918, of the city court of Carrollton. When *194the ease was called, on the day which had been previously fixed for the call of the appearance docket for that term, no plea had been filed by the defendant, and the clerk of the court so announced to the presiding judge. The judge thereupon made the following entry on the docket of the court, to wit: “In default April 27, 1918.” On the same day, but subsequently to the entering of the default judgment and the closing of the docket, the defendant ■ was allowed by the court to file a plea, and the court thereupon scratched out the words “in default,” upon the docket, and marked thereon, “Plea filed April 27, 1918.” While it was not shown in so many words, the undisputed evidence clearly demanded the inference that in opening the default there was no attempt to comply with the provisions of sections 5654 and 5656 of the- Civil Code of 1910. In my opinion the court "erred in overruling the motion to strike the plea. See, in this connection, Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Coker v. Lipscomb, 17 Ga. App. 506 (87 S. E. 704); Longalife Paint Co. v. Williams, 20 Ga. App. 524 (93 S. E. 154). Park’s Ann. Code, §§ 5653, 5654, 5655, 5656, 5661. Under the facts stated above I do not think that this view of the case is contrary to the rule laid down in Saffold v. Banks, Thornton v. Perry, and Smith v. Merchants &c. Bank (cited in the majority opinion), to the effect that entries made by the trial judge upon the docket can not be challenged except by a direct proceeding to vacate or reform them. While the motion in the instant case, to strike the defendant’s plea from the files of the court, may not have constituted, in a narrow and technical sense, a direct proceeding to vacate or reform the entry upon the court’s docket, it amounted in substance and effect to the same thing. In Albany Pine Products Co. v. Hercules Mfg. Co., supra, as in the instant case, the motion was to strike the defendant’s plea, and the facts there were almost identical with those here, except that the evidence in that case did not affirmatively show that the plea was not filed before the enh-y of default was entered upon the doclcet, while in this case that controlling fact was affirmatively shown by the undisputed evidence. In that case the headnote is as follows: “Where it appears that an entry was made by the judge on the docket of ‘in default,’ and it also appears that on the same day the judge defaced the entry by passing his pen through it, in the absence of proof to the con*195trary such, mutilate# entry will be treated as the correction of an inadvertence, and not as an ‘in default’ judgment” (italics mine). From this headnote and the opinion in that case it clearly appears that if the evidence had affirmatively shown that the plea was not filed until after the judgment of default had been entered on the docket, the “mutilated entry” of '“in default” would have been held to be an “in default judgment,” and woul'd not have been “treated as the correction of an inadvertence.”

The refusal of the court to grant the motion to strike the defendant’s plea deprived the plaintiff of a substantial right, and rendered the further proceedings in the case nugatory. In my opinion the judgment on the cross-bill of exceptions should be reversed, and the main bill of exceptions dismissed.