Gunn v. Airbank of America Inc. , 76 Ga. App. 380 ( 1947 )

On February 27, 1947, the plaintiff filed the following exceptions pendente lite: "Be it remembered in said stated matter that at the November Term, 1946, of said court before the final judgment, the court on February 7, 1947, entered an order dismissing the defendant's answer to the plaintiff's petition and marked the case `in default.' Thereupon plaintiff moved the court to allow it to enter judgment for the amount of $15,480, the amount sued for, plus costs. The court, thereupon, overruled plaintiff's motion and, on motion of defendant, after a showing by defendant, allowed the defendant to open the default and reinstate his original answer, all of which was done on February 7, 1947. To the ruling of the court refusing to allow plaintiff to enter judgment as stated above, and to the order of the court allowing defendant to open the default and reinstate his answer, the plaintiff then and there excepted, now excepts and assigns the same as error, and prays that this its bill of exceptions pendente lite be certified to as true and ordered placed on the record."

On April 28, 1947, the plaintiff offered an amendment to the exceptions pendente lite filed February 27, 1947, which amendment was allowed.

The defendant contends that the exceptions pendente lite are insufficient and present no assignment of error for determination by this court. He contends further that the amendment to the exceptions pendente lite was not filed within the time provided by law and cannot be considered by this court.

In its cross-bill of exceptions, the plaintiff assigned error upon the exceptions pendente lite filed February 27, 1947, and in addition to the parts of the record specified in the original or main bill of exceptions, specified the material parts of the record necessary to a clear understanding of the errors complained of in the cross-bill of exceptions.

Even if the exceptions pendente lite were not amendable in the lower court or in this court on the motion as made prior to the commencement of the argument, the cross-bill of exceptions will not be dismissed on the ground that the exceptions pendente lite do not contain legally sufficient assignments of error, where this court can, from an examination of both the exceptions pendente lite and the transcript of the record, ascertain what questions were passed on by the trial judge and what rulings the plaintiff seeks to have reviewed. DuBose v. Bank of Sparta,139 Ga. 115 (76 S.E. 864); American Investment Co. v. CableCo., 4 Ga. App. 106 (60 S.E. 1037); Scoggins v. State,24 Ga. App. 677 (102 S.E. 39); Reynolds v. Speer, 38 Ga. App. 570 (144 S.E. 358); Ennis v. Simmerson, 40 Ga. App. 119 (149 S.E. 67); Anderson v. Ashford Co., 44 Ga. App. 176,180 (160 S.E. 804); Readdick v. Forsythe, 52 Ga. App. 54 (182 S.E. 407);Mullis v. McCook, 185 Ga. 171 (194 S.E. 171); Leathers v. Waters, 35 Ga. App. 757 (134 S.E. 806); Kirkland v.Atlantic Birmingham Ry. Co., 126 Ga. 246 (55 S.E. 23).

Under the above rulings, the motion to dismiss the cross-bill of exceptions is denied.

The defendant also contends that we have overlooked the act of 1912 (Ga. L. 1912, p. 189), in rendering our opinion contained in the third division of the opinion filed December 1, 1947. This act provides: "It is hereby enacted by the General Assembly of the State of Georgia, That from and after the passage of this act defaults in the City Court of Athens shall be opened under the same rules and restrictions as in the superior courts, and the judge of said court shall have the same authority and discretion as to opening defaults that judges of the superior courts have."

The case of American Agricultural Chemical Co. v. Smith,45 Ga. App. 159 (164 S.E. 83), cited by the defendant, is clearly distinguished by its facts from the instant case. In that case the trial judge allowed the defendant to file an answer several terms after the first term, but the record shows that no defensive pleading was filed until the answer was offered, and the record does not disclose that the defendant was ever served with process or that he acknowledged or waived such service.

We think that the filing of the general demurrer in the instant case before the first day of the term to which the case was returnable prevented the case from being subject to a judgment of "in default;" therefore, the act above quoted is not applicable in the instant case. The trial judge erred in allowing the defendant to file his answer, because it was offered too late, and in marking the case in default. See Dodson Printer'sSupply Co. v. Harris, 114 Ga. 966 (41 S.E. 54).

We are of the opinion that we have not misconstrued the cases of Harper v. Tennessee Chemical Co., 37 Ga. App. 433, andMiami Butterine Co. v. Frankel, 190 Ga. 88, as contended by the defendant.

Division four of the opinion has been withdrawn and rewritten and the headnotes have been changed to conform thereto. In view of this, the other contentions of the defendant are not meritorious.

Judgment adhered to. Gardner and Townsend JJ., concur.