Tower v. Ellsworth

37 S.E. 736, 112 Ga. 460, 1900 Ga. LEXIS 198

Opinion

Cobb, J.

1. It is within the discretion of the judge to allow a default to be opened at the trial term, for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, is of opinion that a proper case for opening the default has been made. Civil Code, § 5072 ; Fleetwood v. Equitable Mortgage Co., 108 Ga. 811; Graham v. B. & L. Ass’n, 110 Ga. 278; Mitchell v. Williams, 110 Ga. 280; Mitchell v. Allen, 110 Ga. 282.

Argued December 3, Decided December 20, 1900.

Complaint. Before Judge Littlejohn. Sumter superior court. November term, 1899.

Allen Fort, for plaintiff in error. W. F. Clarke, contra.

2. It follows from the foregoing that this court will not reverse the judgment of a trial judge refusing to open a default, when the only reason assigned for the failure to appear and plead at the proper time is a misunderstanding of counsel for defendant, based on a statement made by the latter, as to the nature of the action.

Judgment affirmed.

All the Justices concurring, except Fish, J., absent.