Fisher v. Savannah Guano Co.

25 S.E. 477, 97 Ga. 473

• Court: Supreme Court of Georgia
• Decided: October 28, 1895
• Status: Published

Opinion

Atkinson, Justice.

The'action in the present case was brought under the pleading act of 1893. The written pleas filed by the defendant were, upon a general demurrer to them, stricken, but no exception appears to have been taken to the order striking these pleas. During the term at which they were ' stricken, and after that was done, the court granted to the defendant’s counsel further time during the same term at which that action was taken, to file another plea, but no other plea was in fact filed during that term. At the next term, the court directed that a judgment be entered up as by default in favor of the plaintiff against the defendant, and declined to allow a plea to be then filed, or to hear •from counsel his reasons for not having filed one within the time limited under the first order. A motion was made for a new trial and to vacate the order entering judgment by default.

1-2. We do not think that after the first term of the court, the defendant’s counsel was entitled, as matter of right, to further indulgence in the matter of filing his plea. The grant of time within which to file pleas was equivalent to a statement of terms upon which such indulgence was granted by the court, and the defendant, having failed to comply with the terms imposed upon him by the court, must appeal to the discretion of the court, and not to any right which inheres in him as a party to have further indulgence in the premises. Nor does it change the nature of the case that at the time the judgment was actually signed, the defendant had in fact sworn to and offered to file a written plea which would have been a substantive defense to the plaintiff’s action. Such plea, even if filed without the consent and allowance of the court, might have been disregarded and ordered from the files as having been entered without legal authority, and inasmuch as the terms imposed by the court in the first instance seem to us reasonable, we are not disposed to interfere with its discretion in refusing further time to the defendant to enable him to make his defense.

The defendant not having excepted in the first instance to the judgment of the court striking his pleas, the court did not err at a subsequent term in refusing to entertain a motion to vacate the order of the previous term striking them, on the ground that it was improvidently granted.

3. The action was upon an unconditional contract in writing. The plea of the defendant, even if meritorious, presented no obstacle to tbe rendition of a judgment by tbe court in favor of tbe plaintiff at tbe time it was granted, for tbe reason that it was not sworn to in tbe first instance and bad not been allowed as an amendment to any other plea after it was sworn to, at tbe time of tbe rendition of tbe judgment; and no error was committed by tbe court, after it bad orally announced judgment in tbe plaintiff’s favor, in refusing to recognize as a defense a plea sworn to and in tbe meantime filed by tbe defendant without allowance by tbe court; and this is true notwithstanding judgment bad not then been actually signed and entered upon tbe minutes, it appearing, as we have before indicated, that tbe whole matter then rested in the discretion of the circuit judge, and that tbe defendant was not entitled at that time, as matter of right, to file a plea to tbe action.

Judgment affirmed.