Fitzgerald v. Ferran , 158 Ga. 755 ( 1924 )

Beck, P. J.

(After stating the foregoing facts.) We are of the opinion that the exceptions contained in the cross-bill of exceptions are well taken. The suit by Mrs. Ferran against Mrs. Fitzgerald had been marked in default. The defendant’s allegations of the negotiations upon the part of the defendant by her agent to settle and pay the note due" at the time of filing the suit, and of the negotiations between defendant’s agent and Paxson, are vague and indefinite. There was no distinct promise upon Paxson’s part not to proceed with the suit alleged. It is provided in the Civil Code, § 5653, that the judge at each term of the court shall call the appearance docket upon some day previously fixed, or on the last day of the term, and upon such call all cases in which the defendant has not filed a demurrer, plea or answer or other defense shall be marked “In default.” This case was called and marked “In default.” In section 5654 it is provided: “At any time within thirty days after the entry of ‘default,’ the defendant, upon payment of all costs which have accrued, shall be allowed to open the default and file his defense by demurrer, plea, or answer.” The defendant did not take advantage of this section. But section 5656 provides: "At the trial term the judge in his discretion, upon pajonent of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.” It does not appear that the defendant paid or offered to pay the costs in the case. . The judge is vested with a discretion in the matter of opening a default at the trial term; but that discretion is a legal discretion. The positive requirements of the section last quoted must be complied with, before the discretion can be exercised in favor of the application to open the default at the trial term. The costs are to be paid, a meritorious defense shall be set up, and the applicant must offer to plead instanter, and announce ready to proceed with the trial'. The plea filed does not show that the costs were paid, nor is there an offer in the plea to pay the costs, nor is there an offer to go to trial instanter; nor does it appear in this record that these things were done. The defendant in part also relied upon the fact, as alleged in her plea as an excuse for not filing the plea and answer at the appearance term, that “at the time of the holding of the March term, 1922, of this court and at which time this suit should have been answered, this defendant was assured by O. F. Paxson, who managed the business of Paxson Bros., that the Mrs. Mitchell indebtedness against said land would be removed all right; and at that time defendant did not know of the material alteration in the notes by the addition of the clause purporting to make all become due when one was unpaid, nor that the $3500.00 for which Paxson Bros, guaranteed to obtain a five-year loan was included as a straight negotiable note; and on the assurance of said Paxson Bros., through said O. P. Paxson, that he would get the notes back from the bank so that the defendant could pay the one which was the only one past due and that the Mitchell debt against the land would be immediately relieved, there was nothing in the transaction to require any defense to be made, and defendant would have all that she was entitled to. Defendant was thus deceived and misled into making no defense at said March, term, and the actual facts upon which the present defense is based thus came to the knowledge of defendant since said term; and she now at the first opportunity presents this her defense and facts upon-which she prays affirmative relief, as well as offering them as defensive to said suit.” It will be observed that there was no promise upon the part of Paxson to dismiss the case, nor does defendant allege that Paxson stated that there was “nothing in the transaction to require a defense to be made.” The distinct allegation is here that Paxson said he would “get the notes back from the bank so that the defendant could pay the one which was the only one past due;” but it does not appear from any allegation that defendant herself, or by her agent, went to Paxson and offered to pay it, nor that she made any inquiry during the term of the court as to whether it was paid or not, and neither she nor her agent looked to the docket or the record of the court to see whether or not the caso was marked in default. They had thirty days after the entry was made in which to do this. Some degree of diligence on the part of a defendant, against whom a suit is brought and who has been served, to ascertain the standing of her case in court is required. If the defendant or her agent was misled by any statement that Paxson made to the effect that the case would not be pressed or would be dismissed, or that they could have a period of time within which to make the payment, there might have been some merit in this plea. These allegations in the plea will be construed most strongly against the pleader. If she had á reason for not filing the plea or for not ascertaining that the entry “In default” had been made, she should have alleged it plainly and distinctly.

We apply the rule stated less reluctantly, as it appears, from other pleadings and exhibits thereto filed subsequently, that the plea is not a meritorious one, and that there is no merit in the contention that the clause in the notes accelerating the maturity of all the notes in cake of a failure to pay the first one on the date of maturity was inserted without her knowledge or by her agent without notice to her and without authority on the part of her agent to make the insertion. She received a bond for title to the land and went into possession of the land under this bond for title, and this clause is contained in the bond for title, and she is presumed to have had notice of it. She went into possession of the land and remained in possession two years. If there was an outstanding mortgage on the land, it was clearly for less than the value of the land, under all the evidence; and she could have ■protected herself, if necessary, by asking a decree to have so much of the amount recovered by the plaintiff applied to the payment of this encumbrance as would be required to meet the principal and interest. As for the contention in the plea that Paxson had agreed to procure a loan for $3500.00, of which she was to have the benefit, it is contrary to the stipulations in the bond for title as to the loan.

We are of the opinion that the court erred, upon the submission of the plea and answer, in opening the default. The judgment of the court below allowing the default to be opened and the plea filed is reversed. Having reversed the judgment on this exception contained in the cross-bill of exceptions, it is unnecessary to consider the exceptions in the main bill of exceptions. The main bill of exceptions will accordingly be dismissed.

Judgment reversed on the cross-hill of exceptions; main hill of exceptions dismissed.

All the Justices concur.