Harper v. Tennessee Chemical Co. , 37 Ga. App. 433 ( 1927 )

Jenkins, P. J.

1. The present demurrer to the plaintiff’s petition, in so far as its grounds are special, comes too late, and in so far as it is a general demurrer the questions sought to be raised are res adjudicata, since the recital in the bill of exceptions when this ease, was formerly before this court shows that the defendant had previously urged an oral general demurrer to the suit, and that such demurrer was then overruled. Tennessee Chemical Co. v. Harper, 30 Ga. App. 789, 790 (119 S. E. 448); Hamrick v. Stewart, 29 Ga. App. 220 (6) (114 S. E. 723). Moreover, irrespective of any such former adjudication, in a suit against two defendants on promissory notes under seal, signed respectively “R. H. Harper and H. L. Harper by H. L. Harper,” and “R. H. & H. L. Harper by H. L. Harper,” where the' petition alleges that R. H. and H. L. Harper “executed the said notes by H. L. Harper,” there is a sufficient allegation, as against a general demurrer, that the instruments were executed by H. L. Harper, and by the present litigant, R. H. Harper, by and through H. L. Harper, the petition not indicating, as was the case in United Leather Co. v. Proudfit, 151 Ga. 403, 404 (107 S. E. 327), that H. L. Harper, in signing the notes for himself and for R. H. Harper, did not have authority under seal from R. H. Harper to bind the latter. The present ease differs from Featherston v. Reese, 36 Ga. App. 379 (136 S. E. 811), in that the defendant in that case filed a timely special demurrer calling for an allegation setting forth the agent’s authority under seal.

2. “Appearance and pleading shall be a waiver of all irregularities .of the process, or of the absence of process, and the service thereof.” Civil Code (1910), § 5559. Accordingly, where counsel for R. H. Harper appeared at the trial term of the court to which suit was brought and announced- that he wished to file on his behalf a traverse to the sheriff’s return of service, and that on account of the absence of his client he desired that the court would grant time in order that he might be enabled to have his client swear to the traverse, and where it appears that, upon objection being made to such request for time, “counsel for R. H. Harper gathered up plaintiff’s petition and urged orally a general demurrer to said suit,” without reservation or any sort of protestation that he did not thereby intend to substitute such general appearance for the previously contemplated special appearance, such unqualified appearance and pleading by which such defendant did then and there invoke and obtain an immediate ruling on the merits of the case, such as, had it been favorable, would have discharged him from all liability, must be taken as a waiver of “all irregularities of the process, or of the absence of process, and the service thereof.” Southern Ry. Co. v. Cook, 106 Ga. 450 (4), 451 (32 S. E. 585); Myers v. Griner, 120 Ga. 723, 724 (48 S. E. 113); Lowe v. Burkett, 65 Ga. 564, 567; High v. Padrosa, 119 Ga. 648, 649 (46 S. E. 859); McFarland v. McFarland, 151 Ga. 9 (105 S. E. 596); Bunting v. Hutchinson, 5 Ga. App. 194, 201 (62 S. E. 49); Connor v. Hodges, 7 Ga. App. 153 (66 S. E. 546). This ruling is not in conflict with cases such as Stallings v. Stallings, 127 Ga. 464, 467 (56 S. E. 469, 9 L. R. A. (N. 8.) 593), holding that appearance and pleading to the merits will not amount to a waiver of lack of service, where before or at the same time want of service is specially pleaded. The theory of these cases in holding that such more or less inconsistent pleas do not destroy each other is that in this way the defendant merely presents all the issues and questions which he is entitled to raise, each to stand in its proper order and to be taken up and decided in proper sequence. Such rules can not have application in the case at bar, where the defendant in the first place actually invoked and obtained an immediate ruling on the merits such as, had it been favorable, would have discharged him from all liability whatever. Nor is the decision now rendered in conflict with what may have been held in Johnson v. Shurley, 58 Ga. 417; Lowe v. Burkett, supra; Cox v. Potts, 67 Ga. 521, and cases following them, with reference to the necessity of the appearance being in writing; the effect and purport of the ruling in those eases being that what formerly amounted to an appearance by the mere marking of counsel’s name on the docket could hardly be accounted such pleading as would work waiver of process, the reason being that the mere entry of counsel’s' name on the docket does not indicate whether such appearance was made for the purpose of pleading to the merits or for the purpose of pleading to the service. But even then it was recognized in the Lowe case that if the defendant followed up such an informal appearance by invoking a benefit thereunder, the rule would be different. Such being the effect of the appearance as made in the instant case, it is unnecessary to determine whether or not the defendant should have been allowed to amend his traverse setting up lack of service.

3. In a suit brought against the makers of joint and several obligations, where both parties are alleged to be residents of the same county, and where the plaintiff claims no right which is dependent upon the action being treated as joint, and where each of the parties treats the action as several by entering separate and independent pleas, the fact that, pending the result of litigation by the present defendant upon the question of service, a judgment may have been rendered against the other defendant will not bar a later recovery in the same action against the defendant who had thus deferred an adjudication on the merits with respect to himself. The rule might be different in a suit on a joint obligation where the judgment against the first defendant merges the entire cause of action, and bars a recovery, at least in a subsequent suit on the same contract, against the other joint obligor. See Almond v. Hathcock, 140 Ga. 26 (3) (78 S. E. 345).

4. “Where a case has never been marked ‘in default’ on the docket, nor any order taken declaring the case to be ‘in default,’ it is error to dismiss an answer to the merits of the cause, filed at a term subsequent to the appearance term, because not filed in time.” Hall v. Tiedemam, 141 Ga. 602 (81 S. E. 868); Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131). This is true for the reason that although a suit may not be answered within the time prescribed by law, it is not, legally speaking, in default until an entry or order so adjudicating has been rendered as contemplated by the practice act of 1895 as embodied in section 5653 of the Civil Code of 1910. American Central Ins. Co. v. Albright, 145 Ga. 515 (89 S. E. 487); Currie v. Deaver, 1 Ga. App. 11 (2), 13 (57 S. E. 897). Thus, while a defendant who by the time prescribed has failed to file any sort of defense incurs the risk of being cut off from the right to plead, by a judgment being rendered of “in default,” still, if, despite such hazard, no such penalty be actually incurred, he may still proceed to enter his belated plea to the merits. But rules governing cases in actual default, and, therefore, subject to a judgment so declaring, can not have any sort of application to cases where there has been filed “a demurrer, plea, answer, or other defense,” such as contemplated by section 5653 of the Code. The filing of such a defense prevents the case from being subject to a judgment of “in default,” and renders it subject to other and different rules with respect to the right to file additional defensive pleading. In such a case the defendant is restricted to the defenses entered, with such aid only as can be derived from proper amendments thereto (Quillian v. Johnson, 122 Ga. 49 (3), 49 S. E. 801; Ford v. Serenado Mfg. Co., 27 Ga. App. 535, 109 S. E. 415), since the filing of a defense debars the filing of subsequent defenses, except by way of amendment, as effectually as would a judgment of “in default.” If the defendant’s pleadings can not, even by amendment, be made to serve,- he can not, upon- their being stricken, substitute new defenses, as though none had been filed. The rule which allows the belated filing of a plea in a ease in actual default, but which has not been so adjudged, does not authorize the “successive presentation of new defenses at later terms as old ones failed and were stricken.” Brooke v. Lowry national Bank, 141 Ga. 493 (4), 494, 497 (81 S. E. 223). In the instant ease, just as was said in the Brooke case, “where a traverse to service and a plea in abatement filed by the defendant had been stricken, and a demurrer to the plaintiff’s petition had been overruled, but no answer had been filed,” it is not within the contemplation of the statutes to allow a belated answer to tlie merits of the ease in lieu of the pleadings pre-viously stricken. Except for' tlie provisions of the practice act of 1895 (Civil Code of 1910, § 5653), requiring an adjudication by an entry or order of “in default” before a defendant who has failed to file “a demurrer, plea, answer, or other defense” can be treated as legally in default so as to deprive him of the right to plead, the defendant would be in default and deprived of his right to plead by a mere failure to meet the mandate of code section 5635 requiring the filing of pleas at the appearance term. Moses v. Kittle, 103 Ga. 806 (30 S. E. 687). Accordingly, since all the right a defendant has to file belated pleas in cases actually in default but not so legally adjudged is derived from the practice act referred to (Civil Code of 1910, § 5653), he is bound in liis privileges by the limitations of the act relied on, and where he has actually filed “a demurrer, plea, answer, or other defense,” so as to render the section cited inoperative, he can not be allowed, by virtue of such section, to take advantage of a failure to render a judgment of “in default”. Especially would the rule just stated apply where the plaintiff moves diligently by asking for a judgment by default prior to the filing by the defendant of any sort of plea, thus eliminating any possible question of. waiver on his part as to the defendant’s failure to plead.

Decided November 21, 1927.

5. Under the foregoing rulings, the court did not. err in rejecting the pleas offered by the defendant, and in thereafter directing a verdict in favor of the plaintiff. ■

Judgment affirmed.

Stephens and Bell, JJ., concur. E. L. Maynard, for plaintiff in error. James W. Smith, Ben-net & Peacock, contra.