Southern Express Co. v. Chero-Cola Bottling Co.

Court of Appeals of Georgia

Southern Express Co. v. Chero-Cola Bottling Co.

100 S.E. 289, 24 Ga. App. 189, 1919 Ga. App. LEXIS 493

CourtCourt of Appeals of Georgia

DecidedSeptember 19, 1919

Docket10201, 10202

StatusPublished

Cited by3 cases

This text of 100 S.E. 289 (Southern Express Co. v. Chero-Cola Bottling Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Southern Express Co. v. Chero-Cola Bottling Co., 100 S.E. 289, 24 Ga. App. 189, 1919 Ga. App. LEXIS 493 (Ga. Ct. App. 1919).

Pincite

Opinions

Stephens, J.

Upon the call of the appearance docket an entry was made thereon by the trial judge, “In default April 27, 1918.” Later in the day a plea was filed, the attorney for the plaintiff notified thereof, and the entry of “in default” erased by the trial judge, and an entry made by him, “Plea filed April 27th, 1918.” Entries made by the judge on the docket are a part of the proceedings in the case. Brady v. Little, 21 Ga. 132 (4), 135 (4). At the trial term a motion was made to strike the plea because at the time it was filed the case was in default and the judge had erred in striking the entry “in default” and marking “plea filed.” While sections 5654 and 5656 of the Civil Code of 1910 provide a way in which defaults may be opened, yet where the method provided by these sections is not followed and the default is set aside and a new entry made, what is the remedy of the plaintiff? He must either except to the erroneous striking of the first entry, or he must file a direct proceeding to “vacate or reform” the second entry. To the judgment erasing “in default” there was no excep[193]*193tion. The motion to strike the plea was not a “direct proceeding to vacate or reform” the entry of “plea filed.” “Entries appropriately made upon the dockets of the superior courts during the pendency of causes, by judges presiding therein, are presumed to represent, truthfully the incidents occurring in the course of litigation; and so long as such entries stand unchallenged by direct proceedings to vacate or reform them, they are not open to collateral explanation or attack.” Thornton v. Perry, 101 Ga. 608 (29 S. E. 24); Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Saffold v. Banks, 69 Ga. 290 (5-a); Smith v. Merchants &c. Bank, 22 Ga. App. 505 (96 S. E. 342). The practice in the city court of Carrollton is the stare as in the superior courts of this State. Ga. L. 1897, p. 438, §§ 13, 17. The only entry on the docket at the trial term being that of “plea filed,” and there being no direct proceedings to vacate or reform this entry, the judge properly refused to strike the plea. In addition it will be noticed that both entries above discussed were made on the same day, and our Supreme Court has said: “At all events a case is not in default unless so entered on the docket by the judge-; and where the entry is marked off or defaced by the judge on the day the appearance docket is called, such marred entry should not have the effect of an Tn default’ judgment. The presumption is that the case was not in default, but that the entry was heedlessly made by the judge through mistake, and that he disfigured the entry with his pen in order to correct his mistake.” Albany Pine Products Co. v. Hercules Mfg. Co., supra.

3. The court erred in admitting, over the defendant’s objections, the two letters set forth in the bill of exceptions.

3. The evidence, with the letters above eliminated, did not demand a finding for the plaintiff, and the court erred in directing a verdict for that party.

Judgment on the main bill of exceptions reven-scd; on the cross-bill affb'med.

Bloodworth, J., concurs. Broyles, P. J., dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

Stephens, J.

Upon the call of the appearance docket an entry was made thereon by the trial judge, “In default April 27, 1918.” Later in the day a plea was filed, the attorney for the plaintiff notified thereof, and the entry of “in default” erased by the trial judge, and an entry made by him, “Plea filed April 27th, 1918.” Entries made by the judge on the docket are a part of the proceedings in the case. Brady v. Little, 21 Ga. 132 (4), 135 (4). At the trial term a motion was made to strike the plea because at the time it was filed the case was in default and the judge had erred in striking the entry “in default” and marking “plea filed.” While sections 5654 and 5656 of the Civil Code of 1910 provide a way in which defaults may be opened, yet where the method provided by these sections is not followed and the default is set aside and a new entry made, what is the remedy of the plaintiff? He must either except to the erroneous striking of the first entry, or he must file a direct proceeding to “vacate or reform” the second entry. To the judgment erasing “in default” there was no excep[193]*193tion. The motion to strike the plea was not a “direct proceeding to vacate or reform” the entry of “plea filed.” “Entries appropriately made upon the dockets of the superior courts during the pendency of causes, by judges presiding therein, are presumed to represent, truthfully the incidents occurring in the course of litigation; and so long as such entries stand unchallenged by direct proceedings to vacate or reform them, they are not open to collateral explanation or attack.” Thornton v. Perry, 101 Ga. 608 (29 S. E. 24); Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270 (51 S. E. 297); Saffold v. Banks, 69 Ga. 290 (5-a); Smith v. Merchants &c. Bank, 22 Ga. App. 505 (96 S. E. 342). The practice in the city court of Carrollton is the stare as in the superior courts of this State. Ga. L. 1897, p. 438, §§ 13, 17. The only entry on the docket at the trial term being that of “plea filed,” and there being no direct proceedings to vacate or reform this entry, the judge properly refused to strike the plea. In addition it will be noticed that both entries above discussed were made on the same day, and our Supreme Court has said: “At all events a case is not in default unless so entered on the docket by the judge-; and where the entry is marked off or defaced by the judge on the day the appearance docket is called, such marred entry should not have the effect of an Tn default’ judgment. The presumption is that the case was not in default, but that the entry was heedlessly made by the judge through mistake, and that he disfigured the entry with his pen in order to correct his mistake.” Albany Pine Products Co. v. Hercules Mfg. Co., supra.

3. The court erred in admitting, over the defendant’s objections, the two letters set forth in the bill of exceptions.

3. The evidence, with the letters above eliminated, did not demand a finding for the plaintiff, and the court erred in directing a verdict for that party.

Judgment on the main bill of exceptions reven-scd; on the cross-bill affb'med.

Bloodworth, J., concurs. Broyles, P. J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

100 S.E. 289, 24 Ga. App. 189, 1919 Ga. App. LEXIS 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-express-co-v-chero-cola-bottling-co-gactapp-1919.

Opinions

Related

Cite This Page — Counsel Stack