Jones v. Hodges , 21 Ga. App. 594 ( 1918 )

Harwell, J.

(After stating the foregoing facts.) The defendant filed a good plea, and the court erred in striking it. The plea did not have to be sworn to. The suit was not upon an unconditional contract in writing, and the petition was not verified. Civil Code (1910), §§ 5638, 5660. The petition does not indicate how the indebtedness arose, whether on account or promissory note; the plea should not have been stricken for any of the reasons alleged. Civil Code (1910), §§ 5634, 5636; Ocean Steamship Co. v. Anderson, 112 Ga. 835 (38 S. E. 102); DeSoto Co. v. Hammett, 111 Ga. 24 (36 S. E. 304); Kahn v. Southern Building & Loan Asso., 115 Ga. 459 (4) (41 S. E. 648). The decisions holding that a general denial of certain paragraphs of the petition is insufficient relate to suits on promissory notes, and in that re'spéct differ from the instant case. Johnson v. Cobb, 100 Ga. 139 (2) (28 S. E. 72); Lester v. McIntosh, 101 Ga. 675 (29 S. E. 7).

The act establishing the city court of Quitman (Ga. L. 1912, p. 293) provides: “Section 14. The first term shall be the appearance term, and the second term the trial term, of all civil cases except eases in which trial by jury shall have been demanded by either party; provided, however, that in all eases in which no defense has been filed upon the call of the appearance docket of in which the defense may be stricken, judgment may be entered at the first term thereof. That the regular term held in the months of January, April, July and October shall be jury terms, at which terms all cases in which trial by jury has been demanded, and which are ripe for trial under this act shall stand for trial by the judge and a jury of twelve men.” Section 15 provides: “In any ease where a trial by jury is- demanded in writing by either party before or upon the call of the appearance docket, said case shall be transferred to the jury docket of said court, and shall stand for trial by a jury at the next jury term of said court. .- . The parties in any cause shall be entitled to a trial by jury' in said court by entering a demand by themselves or their attorneys in writing as herein provided before or upon the call of the appearance docket; provided, that it shall be the duty of the judge of said city court to call the appearance docket at some time fixed by him during the term for the purpose of ascertaining in what eases trials by jury have been demanded, and for the purpose of entering judgment in cases in which no .defense has been filed;” Section 16 provides that “the judge of said city court shall have the power and authority to hear and to determine all civil cases of which said court has jurisdiction, and give judgment therein; provided, always, that either party in any cause shall be entitled to a trial by jury in said court upon entering a demand therefor, by himself or attorney, in writing as provided for in section 15.” Section 24 provides “that the clerk of the city court of Quitman, in addition to the regular issue dockets, shall keep a docket which shall be called a jury docket, in which shall be entered all cases in which trial by jury is demanded,” etc.

Under the provisions of this act, the 'defendant’s plea having been filed and a jury demanded before or upon the call of the appearance docket, at the January term, the case should have been transferred to the jury docket of the court, and would have been ripe for trial at the next jury term (the April term). The court was without authority to give judgment against the defendant. He was denied his constitutional right of trial by jury. He complied strictly with the law in filing his plea and in demanding a jury trial. The court struck the plea and the demand and exercised jurisdiction of the case at the appearance term, and rendered judgment at once without a jury and without a hearing, in the absence of the defendant.

Whether under the.terms of this act, where a jury is demanded but no plea filed, the court would have authority to enter up judgment without the verdict of a jury, at the first-term, need not be determined. Suffice it to say that a good plea was filed in the instant case. The judgment was voidable and could be set aside' on motion timely made. Civil Code (1910), §§ 4358, 5957; Welch v. Singleton, 95 Ga. 519 (20 S. E. 496); Phillips v. Phillips, 124 Ga. 912 (53 S. E. 457); Murray v. Derrick, 101 Ga. 113 (28 S. E. 616); King v. Meyer, 97 Ga. 379; (24 S. E. 32); Horrigan v. Savannah Grocery Co., 126 Ga. 127 (54 S. E. 961); 17 Cyc. 1072; 23 Cyc. 924. The motion to set nside was made at the first term of court (the April term) after the defendant discovered that his plea and jury demand had been stricken and judgment rendered against him. It was shown by him that he procured an attorney to prepare the answer for him, and that this attorney told him that when the answer was filed it would carry the case over to the April term. He relied on the attorney’s statements and did not appear at the January term. Under the facts as they appear in the record we think that the court should have sustained the defendant’s motion to set aside the order striking the plea and jury demand, and also the judgment entered in favor of the plaintiff, and should have reinstated the plea and jury demand and let the case be tried by a jury on its merits. That the defendant did not appear at the January term when his plea was stricken and did not discover that judgment was entered against him until too late to certiorari or make a motion for a new trial would not, under the particular facts of this case, preclude his right to move to set aside this voidable judgment.' Regardless of the assurances given him by his attorney that the case would go over to the April term, or of the custom of the court, the act of 1912j supra, distinctly says that when a jury is demanded, as therein provided, the case “shall he transferred to the jury docket of said court, and shall stand for trial hy a jury at the next jury term of said court.” The defendant certainly had the right to presume that his case would be. transferred to the jury docket and stand for trial at the April term. The court therefore erred in overruling the motion, and the judgment is

Reversed.

Broyles, P. J., and- Bloodworth, J., concur.