Raymond v. Garden

55 S.E. 944, 126 Ga. 728, 1906 Ga. LEXIS 527

• Court: Supreme Court of Georgia
• Decided: November 13, 1906
• Status: Published

Opinion

Lumpkin, J.

A petition for certiorari recited the bringing of a suit on an open account, not verified, in a justice’s court by a certain plaintiff against a certain defendant; that “the defendant filed a plea in said cause before said third day of June, by her attorney, J ere Moore, having his name marked on the docket for the said defendant;” that on the regular court day the ease was set for a hearing, and'notice was given to the attorney for the defendant; that on the day named the case was called, and the attorney for the defendant was not present, being absent from the county at the time; that the justice gave judgment by default in favor of the plaintiff against the defendant, without having any evidence produced by the plaintiff as to the correctness of the account. Error was assigned «upon the rendering ,of this judgment. The entire answer of the magistrate, after stating the case, was as follows: “That the statement is correct as to the statement made in the caption that said case was regularly assigned for hearing and called at the stated time and in due form, and upon formal notice being given to the attorney, who had cpnsented to the assignment; that no defense was interposed, and judgment rendered by default in favor of the plaintiff against the defendant for the sum of $26.75 and costs.” If there was personal service and no defense whatever, a judgment by default was, proper. Peeples v. Sethness Co., 119 Ga. 777. The plaintiff raised the point in her petition for certiorari that her attorney marked his name on the docket of the justice, and that this was equivalent to filing a plea. The answer of the justice does not verify this statement; and hence the point is not properly before the court. Brown v. Gainesville, 125 Ga. 238; Manning v. Gainesville, Id. 239.

Judgment affirmed.

All the Justices concur.