Albany Pine Products Co. v. Hercules Manufacturing Co. , 123 Ga. 270 ( 1905 )

Evans, J.

(After stating the facts.) The evidence does not show that the case was in default. Before a case can be considered in default the appearance docket. must be called and the entry "in default” must be entered. Gordon v. Hudson, 120 Ga. 698. While it appears that an entry was made by the presiding judge, “in default,” it also appears that the same judge defaced the entry by passing his pen through it. Such mutilated entry should not have the effect of a judgment of "in default,” and is rather attributable to an effort on the part of the judge to correct an entry inadvertently made. In calling the appearance docket it sometimes happens that the presiding judge enters a case “in default” by mistake, when a plea has been filed, and such erroneous entry is corrected by a total or partial defacement. It is rather to be presumed, from the evidence in the record, that the entry of the judge was due entirely to inadvertence, and not to an attempt to formally open an “ in default ” judgment. A default can not be opened except in the way prescribed by the statute. Civil Code, §§5070, 5072. There was no attempt to comply with the statutory requirement. The plea may have been filed with the judge, and at the time of the entry he may have forgotten the fact that he had it in his possession. The possibility of such an occurrence may explain the entry on the plea. 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 “ in 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. We hold that it was error to strike the defendant’s plea.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.