Sweat v. Mohr & Sons

94 S.E. 79, 21 Ga. App. 93, 1917 Ga. App. LEXIS 441

Opinion

Jenkins, J.

Section 5656 of the Civil Code (1910), which provides for the opening of defaults, and which, under an act of the General Assembly of 1914 (Ga. L. 1914, p. 191, sec. 38), is applicable to the city court of Blacksliear, authorizes the judge, within his legal discretion, upon payment of costs, to allow a default, to he opened at the trial term, for the reasons therein stated. Such opening of a default'becomes a matter express!y within the discretion of the trial- judge, after the défendant has conformed with the condition imposed by this section. Brawner v. Maddox, 1 Ga. App. 332 (58 S. E. 278). The payment of costs being an imposed prerequisite, and the defendants in this case not having paid them, but merely offering to do so upon the default being opened, the trial court had no discretion in the matter; and it was therefore not error, on motion of counsel for plaintiffs, for the court to dismiss the application and the answer filed therewith at the trial term, and thereafter enter up judgment in favor of plaintiffs against defendants for the amount sued for. Ingalls v. Lamar, 115 Ga. 296 (2), 299 (41 S. E. 573).

Decided October 31, 1917.

Complaint; from city court of Blacksbear — Judge Mitchell. December 13, 1913.

W. A. Milton, for plaintiffs in- error. Paries & Reed, contra.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.