Longalife Paint Co. v. Williams

93 S.E. 154, 20 Ga. App. 524, 1917 Ga. App. LEXIS 957

Opinion

Bloodwoeth, J.

“A defendant has the right, at any time within thirty days after a case has been marked ‘in default,’ to open the default and file his defense, provided he also within the thirty days pays all the accrued costs. Civil Code (1910), § 5654.” Coker v. Lipscomb, 17 Ga. App. 506 (87 S. E. 704). “While, under the Civil Code, § 5072, a trial judge is vested with a wide discretion as to opening a judgment of default, on motion made at the trial term of a case, there is no provision of law authorizing him to entertain and grant a motion to open a default presented at any subsequent term at which the case is called for trial.” Cauley v. Wadley Lumber Co., 119 Ga. 648 (46 S. E. 852); Thornton v. Coleman, 104 Ga. 625, 627 (30 S. E. 782). “There was, for some time after the passage of the act of 1895, doubt as to whether there were any terms upon which a default could be opened after the trial term. We think it is now well settled that a default can not be opened after the trial term has passed.” Brawner v. Maddox, 1 Ga. App. 336 (58 S. E. 278).’ The evidence showing that this ease was in default, and had been so marked on the docket, the court erred in allowing the defendant to file an answer at a term after the trial term of this case; and this error rendered all subsequent proceedings nugatory; since the plaintiff was thereby deprived of a substantial right. Cauley v. Wadley Lumber Co., supra.

Judgment reversed.

Broyles, P. J., and Jenlcins, J., concur.