Bacon v. Douglas

Court of Appeals of Georgia

Bacon v. Douglas

97 S.E. 862, 23 Ga. App. 262, 1919 Ga. App. LEXIS 69

CourtCourt of Appeals of Georgia

DecidedJanuary 15, 1919

Docket9789

StatusPublished

Cited by1 cases

This text of 97 S.E. 862 (Bacon v. Douglas) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bacon v. Douglas, 97 S.E. 862, 23 Ga. App. 262, 1919 Ga. App. LEXIS 69 (Ga. Ct. App. 1919).

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Opinion

Jenkins, J.

(After stating the foregoing facts.) The act of the General Assembly of 1913 (Ga. L. 1913, p. 145) establishing the municipal court of Atlanta, provides in part as follows: “ Section 1. Be it enacted . . . that, effective January first, 1914, all Justices Courts and the office of Justice of the Peace and of Notary Public Ex-Officio Justice of the Peace in the City of Atlanta, Georgia, be and the same are hereby abolished, and in lieu thereof, the Municipal Court of Atlanta is hereby created and established, with the civil and criminal jurisdiction hereinafter provided.” Section 36 provides for the commencement of actions “by summons as now provided for in Justice of the Peace Courts,” and proceeds to set forth specifically and in detail how service on the defendant, other than personal service, shall be perfected. Section 37 provides that “suits in this court, except as herein provided or as may be provided by rules of the court, shall proceed as suits or actions in Justices Courts, under the practice thereof existing under the laws relating thereto, and shall be triable at 'the first term.” Section 46 of the act provides that “in all cases of default, the Chief Judge of said court, or any other Judge acting therefor, may enter judgment without any qall of the docket on or after the Monday on which the action in default is returnable.” It is the contention of counsel for the plaintiff in error, that since the municipal court of Atlanta was created for the purpose of taking the place of justice’s courts in the city of Atlanta, it does not, so far as the necessity for pleadings is concerned, differ from the justice’s courts (see Shippey v. Owens, 17 Ga. App. 127 (86 S. E. 407) ); also that the case is controlled absolutely by section 4730 of the Civil Code of 1910, which provides as follows: “"When suit is brought upon an open account in a justice court, such account may be proved by the written affidavit of the plaintiff, and, when so proved, shall be received in evidence as if proved in open court; nevertheless, if the defendant will file his affidavit denying the justice and fairness of the whole or any part of such account, the court shall not give judgment in favor of the plaintiff for that part of the account so denied and controverted, unless supported by other proof. In all cases when such' affidavit to prove the account is made, there shall be personal service upon [264]*264the defendant before judgment is given for the plaintiff under the provisions of this section. In all cases where a counter affidavit is filed by the defendant, and the plaintiff is not present, it shall be the duty of the justice of the peace to continue such case until-the next term of said court. Nothing in this section contained shall apply to suits against administrators and executors on contracts of their deceased testators arid intestates.” Counsel also cite Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170), Sims v. Thomas, 18 Ga. App. 212 (89 S. E. 163), and Sapp v. Mathis, 12 Ga. App. 273 (77 S. E. 102), where it is in substance held that a suit in a justice’s court on a verified account, with personal service, entitles the plaintiff to -a judgment without further proof, unless a verified defense is filed; and that even though the account be not verified, if the service is" personal, the failure of the' defend-. ant to make any defense amounts to an admission of the correctness of the account, and entitles the plaintiff to a judgment on the call of the docket, and without the case being assigned for trial. The theory, however, on which the municipal-court judge entered his judgment by default upon the unverified account in the absence of personal service, and without requiring proof of its correctness, is based upon the provisions of section 46 of the act as above quoted. The validity'-of this act is not in question, and -under it no entry of default, or call of the docket is required, but the provision is- that “in all cases of default” the judge “may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.” Do the words, “in all cases,” authorize the judge to thus “enter judgment” where the service, though legal, is not personal? We concur in the opinion held by the judge who entered the judgment, and by the superior court judge, that they do. While the act creating the municipal court establishes the practice of that court to be the same as that which obtains in justice’s -courts, except as may therein be otherwise provided/here .it seems that there is a specific exception to the rules of such uniform, practice and procedure. In justice’s courts it is only in some cases that such a default judgment without proof may be entered; while in this municipal court such power is, under the terms of the act, vested in it in all cases.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

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Jenkins, J.

(After stating the foregoing facts.) The act of the General Assembly of 1913 (Ga. L. 1913, p. 145) establishing the municipal court of Atlanta, provides in part as follows: “ Section 1. Be it enacted . . . that, effective January first, 1914, all Justices Courts and the office of Justice of the Peace and of Notary Public Ex-Officio Justice of the Peace in the City of Atlanta, Georgia, be and the same are hereby abolished, and in lieu thereof, the Municipal Court of Atlanta is hereby created and established, with the civil and criminal jurisdiction hereinafter provided.” Section 36 provides for the commencement of actions “by summons as now provided for in Justice of the Peace Courts,” and proceeds to set forth specifically and in detail how service on the defendant, other than personal service, shall be perfected. Section 37 provides that “suits in this court, except as herein provided or as may be provided by rules of the court, shall proceed as suits or actions in Justices Courts, under the practice thereof existing under the laws relating thereto, and shall be triable at 'the first term.” Section 46 of the act provides that “in all cases of default, the Chief Judge of said court, or any other Judge acting therefor, may enter judgment without any qall of the docket on or after the Monday on which the action in default is returnable.” It is the contention of counsel for the plaintiff in error, that since the municipal court of Atlanta was created for the purpose of taking the place of justice’s courts in the city of Atlanta, it does not, so far as the necessity for pleadings is concerned, differ from the justice’s courts (see Shippey v. Owens, 17 Ga. App. 127 (86 S. E. 407) ); also that the case is controlled absolutely by section 4730 of the Civil Code of 1910, which provides as follows: “"When suit is brought upon an open account in a justice court, such account may be proved by the written affidavit of the plaintiff, and, when so proved, shall be received in evidence as if proved in open court; nevertheless, if the defendant will file his affidavit denying the justice and fairness of the whole or any part of such account, the court shall not give judgment in favor of the plaintiff for that part of the account so denied and controverted, unless supported by other proof. In all cases when such' affidavit to prove the account is made, there shall be personal service upon [264]*264the defendant before judgment is given for the plaintiff under the provisions of this section. In all cases where a counter affidavit is filed by the defendant, and the plaintiff is not present, it shall be the duty of the justice of the peace to continue such case until-the next term of said court. Nothing in this section contained shall apply to suits against administrators and executors on contracts of their deceased testators arid intestates.” Counsel also cite Peeples v. Sethness Co., 119 Ga. 777 (47 S. E. 170), Sims v. Thomas, 18 Ga. App. 212 (89 S. E. 163), and Sapp v. Mathis, 12 Ga. App. 273 (77 S. E. 102), where it is in substance held that a suit in a justice’s court on a verified account, with personal service, entitles the plaintiff to -a judgment without further proof, unless a verified defense is filed; and that even though the account be not verified, if the service is" personal, the failure of the' defend-. ant to make any defense amounts to an admission of the correctness of the account, and entitles the plaintiff to a judgment on the call of the docket, and without the case being assigned for trial. The theory, however, on which the municipal-court judge entered his judgment by default upon the unverified account in the absence of personal service, and without requiring proof of its correctness, is based upon the provisions of section 46 of the act as above quoted. The validity'-of this act is not in question, and -under it no entry of default, or call of the docket is required, but the provision is- that “in all cases of default” the judge “may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.” Do the words, “in all cases,” authorize the judge to thus “enter judgment” where the service, though legal, is not personal? We concur in the opinion held by the judge who entered the judgment, and by the superior court judge, that they do. While the act creating the municipal court establishes the practice of that court to be the same as that which obtains in justice’s -courts, except as may therein be otherwise provided/here .it seems that there is a specific exception to the rules of such uniform, practice and procedure. In justice’s courts it is only in some cases that such a default judgment without proof may be entered; while in this municipal court such power is, under the terms of the act, vested in it in all cases.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

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97 S.E. 862, 23 Ga. App. 262, 1919 Ga. App. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bacon-v-douglas-gactapp-1919.

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