Barron Bros. v. New York, New Haven & Hartford Railroad , 31 Ga. App. 757 ( 1924 )

Broyles, C. J.

(After stating the foregoing facts.) The answer of the trial judge sets forth the following evidence: “ On July 22, 1920, plaintiffs delivered to the Macon and Birmingham Railway Co., at Thomaston, Ga., 456 crates of peaches in good order, which were loaded in car FGE 24063 and consigned to the Georgia Fruit Exchange at Potomac Yards, Ya. Upon arrival of the car at Potomac Yards the same was diverted to H. B. Fisk & Co., Providence, R. I., and said car was delivered to the defendant in time for the peaches to have arrived in Providence July 28, 1920. The usual running time for delivery from Potomac Yards to Providence was such that they should have been delivered on July 28, 1920, if they had not been delayed. On arrival and inspection on July 30 many of the peaches were spoiled and decayed, and the delay was the cause of the spoiled and decayed condition. Had the peaches arrived in good condition their market value at Providence would have been $4 per crate and would have netted plaintiff $1,262.87, but, due to the decayed condition, they netted plaintiff $666.32, resulting in a damage of $596.55. The plaintiff’s witness also testified that he had been engaged in handling peaches for several years and was familiar with the thing which caused decay in transit, and was familiar with the usual running time between Potomac Yards and Providence, E. I. He also testified that a claim for loss and damages was filed with the Macon and Birmingham Eailway Co., the initial carrier, on August 30, 1920, and that an amended claim was filed March 3, 1921, and that the claim had been declined in full. The witness also identified a copy of the amended claim filed March 3, 1921, copies of which bill of lading and amended claim are hereto attached and marked Exhibits A and B of this answer.” This part of the answer was not traversed, and it is well settled that “in a certiorari case the answer of the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416).

The above-stated facts bring the instant case squarely within and under the ruling of the Supreme Court of the United States in the case of Chicago & Northwestern Railway Co. v. Whitnack Produce Co., 258 U. S. 369, where it was held: “1. When goods moving in interstate commerce upon a through bill of lading are delivered in bad condition and the evidence shows that they were sound when received 'by the initial carrier but does not affirmatively establish where the loss occurred, there is a common-law presumption, applicable under the Carmack Amendment,- against the delivering carrier, that the injury occurred on the delivering carrier’s line. 2. There is no inconsistency between this rule and the provision of the amendment making the initial carrier also liable.” See also Illinois Central R. Co. v. Banks, 31 Ga. App. 756 (502 S. E. 756).

It follows that since the evidence introduced upon the trial demanded a verdict and judgment in favor of the plaintiffs, the only other question for determination is whether or not the trial judge erred in treating the case as being in default. The practice in the municipal court of Atlanta as to default cases is set out in the agreement of counsel as follows: “Rule No. 8 of the ‘Rules for the Municipal Court’ is as follows: ‘Rule No. 8. Default judgments and verdicts where proof is necessary may be taken on the second day Of the term to which said case is made returnable, or thereafter, at such time as will not interfere with the contested litigation of said court.’ For his own convenience, the clerk of the court separates the papers in all ‘default’ cases, with the exception of those. based upon a sworn open account, from the general file and places them into a file known as the ‘default file.’ The plaintiff may at any time secure these papers, present them to the court with the necessary evidence, and secure his judgment. ‘Default’ cases are not placed upon the trial calendar of the Municipal Court. In order to prevent an accumulation of ‘default’ cases, and for the purpose of serving notice upon the piaintiff that the case is ‘in default’ and ready for judgment, it is the practice of the clerk of the court, at such time as he deems fit, to send a written notice to counsel for the plaintiff, to the effect that the ease will be placed upon the ‘trial calendar’ to be called by the Chief Judge of the court at 10 o’clock on a named day, and that unless disposed of by the plaintiff the same will be dismissed for want of prosecution. There is no definite or stipulated time for the calling of such ‘default’ cases, and no notice is given to the bar generally, either by publication, the formation of a calendar on file in the clerk’s office, or otherwise, that ‘default’ cases will be called at a specified time. The ‘default’ cases, are not placed upon any trial calendar, but the court papers in these cases are handed to the Judge, who calls the names of the cases in open court at 10 o’clock on the day named. If there is no answer the case is dismissed for want of prosecution. If the plaintiff is present and ready with evidence to support his ease, the matter is tried by the Chief Judge or is sent to one of the other trial judges of the court for disposition. The present case has never been on the trial calendar of the municipal court of Atlanta. It was not on the trial docket for Tuesday, April 17, 1923, and was not called as a regular trial case. As no answer was filed to the declaration in attachment in this case, and as no appearance was made, the case was treated by the clerk of the court as a ‘default’ case. The papers were placed in the default file.”

Section 46 of the act establishing the municipal court of Atlanta (Ga. L. 1913, p. 145) provides: “In all cases of default, the Chief Judge of said court, or any other Judge acting therefor, may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.” In construing this section the Court of Appeals in the case of Bacon v. Douglas, 23 Ga. App. 262, 264 (97 S. E. 862), said: “The validity of this act is not in question, and under it no entry of default or call of the docket is required, but the provision is that ‘in all cases of default’ the judge ‘may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable.’ Do the words, ‘in all cases,’ authorize the judge to thus ‘enter judgment’ where the service, though legal, is not personal? We concur in the opinion held by the judge who entered the judgment, and by the superior-court judge, that they do. While the act creating the municipal court establishes the practice of that court to be the same as that which obtains in justice’s courts, except as may herein he otherwise provided, here it seems that there is a specific exception to the rules of such uniform practice and procedure. In justice’s courts it is only in some cases that' such a default judgment without proof may be entered; while in this municipal court such power is, under the terms of the act, vested in it in all cases.” The provisions of section 46, supra, referring to “all eases of default” is obviously broad enough to include an attachment case in which no answer has been filed at the appearance term; and in the instant case the practice pertaining to default eases'in the municipal court of Atlanta was strictly followed.

It is. true that the defendant was never notified of the trial. However, it would have received notice if it had filed an answer. The attachment was ample notice to the defendant that a defense should be made, if any existed, and after the levy the defendant had a reasonable time in which to file an answer. See, in this connection, Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565). In the instant case no general judgment in personam was rendered, but merely a judgment in rem. The failure to place the case upon the tentative calendar published in the Eulton Daily Report is of no legal import. See Watts v. Jackson, 22 Ga. App. 31 (95 S. E. 324).

It is our opinion that the case was tried in accordance with the rules of the municipal court, and that the evidence demanded the verdict and judgment in favor of the plaintiffs. The judge of the superior court, therefore, erred in sustaining the certiorari and granting a new trial.

Judgment reversed.

Luke and Blooclworih, JJ., concur.