Johnson v. McCurry , 102 Ga. 471 ( 1897 )

Fish, J.

1. When this case was called for trial in the court below on July 20, 1896, it was in default. Complaint is made by the plaintiff in error, that notwithstanding this fact the court, over his objection, permitted the defendant to file a plea of payment, without at the same time requiring him, as a condition precedent to opening the default, to pay all costs which had accrued in the case up to that time. In this connection, the practice act of 1895 (now embodied in sections 5069 et seq. of the Civil Code) is cited and relied upon. It does require, not only “payment of all costs which have accrued,” but that the defendant shall move “within thirty days after the entry of default.” The record before us discloses, however, that the present action was instituted on March 7, 1893, and that the judgment of default therein was entered long prior to the passage of that act. Indeed, the ease stood in default upon the docket prior to the passage of the pleading act of 1893, which left somewhat in doubt the power of the judge to open a judgment of default, even upon payment of costs. It follows, therefore, that neither of these two acts can have any bearing upon the question here presented.

Tested by the law as it stood when the judgment of default was entered in the case at bar, there is no merit in the complaint made by the plaintiff in error that no terms were imposed upon the defendant as a condition to allowing him to open the default and file a plea; for this was a matter within the sound discretion of the trial judge. Lambert v. Smith, 57 Ga. 25; Sasser v. Sasser, 73 Ga. 283; Russell v. Hubbard, 76 Ga. 621; Jones v. Grantham, 80 Ga. 474. Moreover, it appears from the record that the plea alleged payment to have been made subsequently to the entry of the judgment by default; and if it were necessary to open the default to file such a plea, there certainly was no error in so doing.

2. The rule of law stated in the second headnote is one no-longer open to question. Under the evidence submitted, a finding in favor of the defendant was a legal impossibility;, and therefore the verdict returned by the jury was contrary to-law and should have been set aside.

Judgment reversed.

All the Justices concurring.