Miller v. Phœnix Mutual Life Insurance

147 S.E. 527, 168 Ga. 321, 1929 Ga. LEXIS 132

• Court: Supreme Court of Georgia
• Decided: March 14, 1929
• Docket: No. 6942
• Status: Published

Opinion

Hines, J.

1. The terms of Laurens superior court are held for two weeks on the fourth Mondays in January, April, July, and October. Ga. L. 1911, p. 81.

2. At the trial term the judge in his discretion, upon payment of costs, may allow a default to be opened for providential cause preventing tire filing of a plea, or for excusable negligence, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened on terms to be fixed by tire court. Civil Code (1910), § 5656.

3. Payment of costs is a mandatory requirement of this section; and if not paid, judgment for the plaintiff may be rendered by the court. Coker v. Lipscomb, 17 Ga. App. 506 (87 S. E. 704). The costs in this ease were not paid or offered to be paid by the defendants.

4. The courts of this State are without jurisdiction to open a judgment by default after the trial term has passed. Stubbs v. Mendel, 148 Ga. 802 (98 S. E. 476) ; Avery v. Sorrell, 157 Ga. 476 (121 S. E. 828) ; Id., 32 Ga. App. 41 (122 S. E. 638). This is so .although the court may not . be held at the trial term.

5. A judgment refusing, on motion of defendants, to open a default judgment concludes them as to a second motion based upon the same ground. Civil Code (1910), § 4335. This is so although they may not have been present when the first motion was heard and the judgment was rendered.

6. The court did not err in denying the second motion to open the default in this case, and in rendering judgment for the plaintiff.

Judgment affirmed.

All the Justices concur. W. B. Kent, for plaintiffs in error. B. L. Williams, contra.