Johnson, Mitchell & Co. v. Durham, Alling & Co.

31 Ga. 335

• Court: Supreme Court of Georgia
• Decided: August 15, 1860
• Status: Published

Opinion

By the Court.

Lumpkin, J.,

delivering the opinion.

The suit in this case was originally brought in the Inferior Court, and carried up, by appeal, to the Superior Court. The name o-f defendants’ counsel was marked on the Bench-Docket of the Inferior Court; but no plea, not even. the general issue, was ever filed in the case. The Judge held that the case was in default, and would not allow an appearance under the common law rules of practice until the cost was paid. The case was submitted to the jury, ex pm'te, by the plaintiffs and, upoii proof of their demand, a verdict was rendered for the amount of the account. A new trial was moved for and refused, and the case is brought to this Court for correction.

By the judiciary Act of 1799, an answer has to be filed at the appearance term of the Court. In some of the circuits, the general issue is always considered as filed, and it is insisted that this is true in the Tallapoosa Circuit. The Judge, by his ruling, ignores any such practice.

But, suppose this were so. Counsel state that they expected to file a plea of set-off. This amendment they had a right to make. But, then, under the same Act which gives them this right — the statute of 1833 and 1854 — the Judge had the co-relative right of not only requiring the cost to be paid, but prescribing such other terms as he, in his discretion, might see fit to impose. If the defendants refused to comply with the only terms proposed, namely: the payment of the cost, it was the right of the Court to reject their plea, if indeed they had offered any, which they did not.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.