158 Ga. 13 | Ga. | 1924
At the August term, 1933, of Wilkes superior court, the Wilkinson Bolton Company instituted against Walton its statutory proceeding to foreclose a mortgage on certain described real estate. At that term a rule nisi was granted, returnable to the November term, 1933, of said court. The latter term would have been held on November 6, 1933, had it not been postponed. The judge of said court, during the week prior to the time when said November term of said court would have been held, announced in the News-Reporter, the official organ of the county, and otherwise, that “Wilkes superior court will not convene next Monday in regular November session.” In pursuance of said notice the court did not convene on November 6, 1933. On that day the judge came to the City of Washington, arriving about 10 o’clock
We will deal first with the question raised in the cross-bill of exceptions. Did the trial judge err in overruling the demurrer to the petition? The judgment foreclosing the mortgage was rendered in the clerk’s office, on the first day of the November term, to which the rule nisi was returnable. The judge had caused a previous notice to be published in the official organ of the county, that this term of the court would not be held; and it was not held. There was no opening of the court on that day. The case was not sounded at the time the judgment was taken; but the same was privately presented by the plaintiff to the judge, who signed the same. Superior courts must be held “at the county site and court-house (if any) of each county, or other place therein designated by law.” Civil Code (1910), §4839. We would not, if it were necessary to decide this question, be disposed to hold that a judgment of the superior court was void, under this statute, because rendered in a room in the court-house other than the regular room in which that court is usually held. Hnder a statute of Alabama, similar to our' statute, it was held that it was not error to hold the court in the sheriff’s office. Scott v. State, 133 Ala. 112 (32 So. 623). The Supreme Court of Louisiana decided that “the court may be opened and held in the room commonly used as a clerk’s office, and the decrees and judgments, rendered in such room or place, will not„ be void.” Smith v. Jones, 23 La. Ann. 43. In that case the clerk’s room adjoined the court-roqm, the parties were present and participated in the trial; and in its opinion that court said that the proceeding was “in open court, in the legal sense, there being a judge, a clerk and a sheriff, and the record showing that the court was open.” In Block v. Kearney, 6 Cal. Unrep. 660 (64 Pac. 267),
In People v. Warden, 117 App. Div. 154 (102 N. Y. Supp. 374), the court said: “A person indicted for crime has no constitutional right to be tried in one court-room rather than in another in the same county; and there could be no possible disadvantage to the relator, and none is alleged, in the change of court-rooms, whether the rooms were in one or more buildings.” So where from a special emergency steps are taken in the cause before a special judge, while another cause is on trial, rendering it necessary to occupy a room in the court-house other than the regular court-room, and in so doing no legal or constitutional right of the accused is infringed, and it is manifest that no substantial injury has been done, the trial is not illegal. Reed v. State, 147 Ind. 41 (46 N. E. 135). “It is not in all cases essential to the validity of a court’s proceedings that the court be held in the house or room where its sessions are usually held.” 15 C. J. § 266.
This brings us to consider the question presented in the main bill of exceptions. At the conclusion of the plaintiff’s evidence, the learned judge Avho tried the ease granted a motion for non-suit. Error is assigned on this judgment of nonsuit. Was the
The trial judge seems to have rested his judgment granting a nonsuit upon the ground that the defendant in the mortgage foreclosure proceeding was negligent in not filing his defense on the sixth day of November, 1922, when the November term, 1922, of the court would have begun, if held. In a statutory proceeding to foreclose a mortgage on real estate, “the mortgagor, or his special agent or attorney, may appear at the term of the court at which’ the money is directed to be paid, and file his objections to the foreclosure of such mortgage, and may set up and avail himself of any defense which he might lawfully set up in an ordinary suit instituted on the debt or demand secured by such mortgage.” Civil Code (1910), § 3279. While it is the better and safer practice for the mortgagor, if he has a defense, to file the same on the first day of the term to which the rule nisi is returnable, he has the right to make such defense “at any time during the term, before or when his case is called for trial, but not afterwards.” Michelson v. Cunningham, 96 Ga. 601 (24 S. E. 144). By the procedure in this case the mortgagor was deprived of this substantial right. Whether negligent or not, we have shown that no valid judgment was rendered in this case; and for this reason the negligence of the mortgagor, if any, would not preclude him from having this void judgment set aside.
Judgment reversed on the main bill of exceptions, and affirmed • on the cross-bill.