Graham v. Atlanta National Building & Loan Asso.

34 S.E. 847, 110 Ga. 278, 1899 Ga. LEXIS 551

• Court: Supreme Court of Georgia
• Decided: November 30, 1899
• Status: Published

Opinion

Simmons, C. J.

1. In an action by a building and loan association to foreclose a mortgage given to it by one of its members, it is not necessary for it to serve upon the mortgagor “ a complete statement of the amount for which they claim judgment, fully setting out the amount claimed for principal, interest, fines, or penalties,” until at least thirty days before the court at which judgment is to be taken. A plea in abatement by the mortgagor, filed at the first term, alleging that such notice was not served upon her, was demurrable, and the judge did not err in sustaining a demurrer thereto. Civil Code, §2392.

2. It is within the discretion of the court at the trial term to allow a default to be opened for providential cause, or excusable neglect, or where, from all the facts, the court may determine that a proper case has been made for the default to be opened, on terms to be fixed by it. Under the facts disclosed by the record, the judge did not abuse ¡his discretion in refusing to allow the default to be opened in this case. Civil Code, §5072.

Judgment affirmed.

All the Justices concurring.