Caldwell v. Freeman , 146 Ga. 469 ( 1917 )

Beck, J.

(After stating -the foregoing facts.)

1. While under the Civil Code, § 5656, a trial judge is vested with a wide discretion as to opening a judgment of default on motion made at the trial term, there is no provision of law authorizing him to entertain a motion to open a default at any subsequent term at which the case is called. Thornton v. Coleman, 104 Ga. 625, 627 (30 S. E. 782). To move to open a default at the term at which a ease regularly stands for trial is purely a matter of grace, and this privilege must be exercised, if at all, within the time prescribed by the statute whereby it is conferred. The foregoing restates the ruling made in the case of Cauley v. Wadley Lumber Co., 119 Ga. 648 (46 S. E. 852).

2, 3. There was no error in overruling the motion to dismiss as to W. M. Caldwell, who was a resident of Pike county. The process attached to the second original intended for service upon him should have been directed to the sheriff of Pike county instead of to the sheriff of Meriwether county; but that afforded no reason to dismiss the case as to W. M. Caldwell, when the motion for such dismissal was made, not by him or on his behalf, but by and on behalf of H. D. Caldwell, who was not one of the joint makers of the note, but was the grantee in the deed from one of the joint makers. Besides this, W. M. Caldwell as well as the other defendants appeared before court and made a motion (equivalent to a general demurrer) to dismiss the case generally upon grounds other than that of the improper direction of the process attached to the second original; and moreover counsel for W. M. Caldwell and the other two makers of the note stated to the court, during his argument upon the motion to .dismiss, that he had no objection to a judgment being rendered against W. M., L. A., and J. M. Caldwell for the amount due on the note. We think this was a complete waiver of any defect in the process, as the only recovery sought against W. M. Caldwell was a judgment for the amount of the note, and the only objection that H. D. Caldwell could have to the defect in service upon W. M. Caldwell was that the latter would not be bound by the judgment, there having, been no proper service upon him.

4. There being no plea or answer in the case, and the petition being properly paragraphed, the allegations of the petition are to be taken as true; and being thus taken, they required the verdict which the court directed. Hence the court did not err in directing a verdict in favor of the plaintiffs, awarding to them the amount of the notes, and decreeing a cancellation of the deed to H. D. Caldwell from his father, one of the joint makers of the -notes. Judgment affirmed.

All the Justices concur.