Vanlandingham v. Wight Hardware Co. , 77 Ga. App. 689 ( 1948 )

1. Under rules applicable to superior courts, the mere fact that the City Court of Cairo might not have been organized on the first day of a term did not have the effect of adjourning the court, and the judge could properly call the appearance docket on the following day, under the facts of this case.

2. The call of one case on an appearance docket is the call of the appearance docket so far as that case is concerned.

DECIDED SEPTEMBER 18, 1948. Guy VanLandingham filed a petition for certiorari to the Superior Court of Grady County to review a judgment of the City Court of Cairo, which dismissed the plaintiff's motion to set aside a final judgment and a default judgment in an action by the defendant against the plaintiff in said city court. The petition for certiorari alleged the following: 1. "That on the 3rd day of September, 1946, Wight Hardware Company, as plaintiff, filed its suit against petitioner, as defendant, returnable to the October term, 1946, of the City Court of Cairo. 2. That on the 15th day of October, 1946, the Judge of the City Court of Cairo entered a judgment in said case in favor of the plaintiff and against defendant for the principal sum sued for, interest, and fifteen percent attorney fees, together with court cost. 3. That on the 21st day of October, 1946, petitioner presented to the Judge of said City Court of Cairo his motion to set aside the judgment entered therein on the 15th day of October, 1946, a rule nisi was issued thereon and served upon the plaintiff, a copy of said motion and rule nisi is hereto attached, marked Exhibit ``A' and made a part of this petition. 4. Said motion coming on for hearing on the 25th day of October, 1946, your petitioner introduced the following testimony:

"S. P. Cain, being sworn for petitioner, testified that, before going to Camilla, Georgia to attend superior court on the second Monday in October, 1946, he went to the courthouse at an hour which was past the hour for the City Court of Cairo to convene and no court had convened, and he was advised that no court would be held, but that court had been adjourned over to the third Monday in October, 1946. That he had asked the defendant to come in on Saturday before the second Monday to sign his answer, and stated to him that the answer would continue the case over to the January term when it would be trial term. That the defendant did not come, and when he was contacted by witness, he stated to witness that he misunderstood him and understood that it was not necessary for him to come until Saturday. That it had been the practice in the City Court of Cairo and in Grady Superior Court to call the appearance docket, after giving the attorneys notice, and at the time the appearance docket was called any cases in which an answer had not been filed, counsel for the defendant would be given the right to file an answer at that time, or on proper showing given a certain number of days in which to file answer. That on Wednesday after the second Monday counsel first learned that a judgment had been entered in this case on the 15th. It was agreed that no court was convened on the second Monday in October, 1946; that the judge of said court orally stated to parties interested and their attorneys that court would not convene until the third Monday, at which time criminal business and non-jury civil business would be disposed of. That on the 14th day of October, 1946, one of the attorneys for the plaintiff asked about taking judgment in this case and was advised by the judge that he could not take judgment until the next day. That on the next day while in the office of the clerk of the court, a judgment was entered by the judge and an entry made on the bench docket marking said case in default and an entry that judgment for plaintiff had been entered. 5. Petitioner at the same time presented his proposed answer, a copy of which is hereto attached, marked Exhibit ``B' and made a part of this petition, and asked that said judgment and entry of in default be set aside and that he be permitted to file said answer. 6. At the conclusion of the evidence the plaintiff orally moved to dismiss the motion, because the court had no jurisdiction to pass thereon and had no discretion in the matter. After hearing argument and considering evidence and the oral motion, an order was entered in said case sustaining said oral motion and refusing the petitioner the right to file an answer therein, specifically stating that the court spoke of the opinion that it had no jurisdiction to consider the matter and had no discretion in determining as to setting aside said judgment and permitting said answer to be filed. 7. Petitioner assigns error on the overruling of said motion to set aside said judgment and entry of default and the denial of petitioner's request to be permitted to file said answer, and shows that said motion should have been granted on each ground contained in said motion and the overruling of the same and the denial of the right to file said answer was contrary to law and erroneous. 8. Petitioner shows that no court was organized on the second Monday in October and no written order was entered adjourning said court over to any other day. 9. Petitioner shows that it has been the practice in the City Court of Cairo to call the appearance docket on some date after the first day that court might be held and after announcement had been made by the judge in open court fixing a time when the appearance docket would be called; and the defendant given the right to file a defense in any cause returnable to that court at any time up to the calling of the appearance docket. On the call of the appearance docket, if no answer or defense has been filed in said case additional time would be given to counsel representing the defendant if a request for additional time was made for the purpose of filing a defense in said case. 10. The judgment entered on the 15th day of October, 1946, was entered in the clerk's office, and the entry on the bench docket marking said case in default and showing that a judgment had been rendered therein was made at the same time the judgment was signed, all of said acts being done at the same time. 11. The October term, 1946, of said court was not organized on the second Monday, nor was it organized the day following. The appearance docket was not called on either of said dates. Neither was any written order of any kind entered adjourning said court to any date. 12. Petitioner comes now and after having complied with the law in such cases and presents this his petition for certiorari within thirty days from the final determination in said cause, and specifically assigns errors therein as follows: (a) The judgment rendered in said case was illegal because the same was entered at a time and place when no legal judgment could be entered by said court, for the reason that, no court having been organized on the second Monday and none having been organized on Tuesday, the judge was without jurisdiction to enter up a judgment in said case as set forth above. (b) No appearance docket having been called in said court and no legal default having been entered in said case, it was error for the court to refuse petitioner the right to file an answer therein. (c) The entry of default entered in said case was illegal and contrary to law. (d) The judgment entered in said case on the 15th day of October, 1946, was contrary to law. (e) The order entered in said case overruling said motion to vacate said judgment was contrary to law."

The motion to set aside the judgment is as follows: "1. The defendant has a meritorious defense to the claim of the plaintiff and is ready and now offers to file his answer therein. 2. No court was held on the second Monday of this term, but it was announced that the court would be adjourned over to the third Monday in October, 1946. (a) The appearance docket was not and has not been called in said court, and movant shows that it has been the custom in said court to call the appearance docket during the court at such time as might be announced by the court, and any defense permitted filed in the cases returnable to that term of court allowed up to the time the appearance docket was called. 3. Movant shows that his counsel was engaged in court on the second Monday in the superior court at Camilla, and City Court being adjourned over to the third Monday, expected to file defendant's answer prior to the third Monday, but found on examination that a judgment had been entered herein on the 15th day of October, 1946. 4. Movant shows that, although an entry of default was made on the docket and the judgment entered up, the court did not call the appearance docket, and the same was not done in open court but was done either in the clerk's office or in the office of the judge, the entry of default and the judgment all being entered at the same time."

The Judge of the City Court of Cairo responded to the writ of certiorari as follows:

"First: Respondent admits the allegations contained in paragraphs (1), (2), (3), (4), (5), (6), (8), (9), (10), and (11) of said petition for certiorari.

"Second: Respondent neither admits nor denies the facts stated and conclusions reached as stated in paragraphs (7) and (12) of the petitions, they being conclusions of law.

"Third: Respondent does hereby certify the exhibits, to wit, ``Exhibit A' and ``Exhibit B' attached to the petition for certiorari, as being true and correct and adopts them as a part of his answer herein.

"Fourth. Respondent further states that all proceedings necessary to a clear understanding of the errors specified in the petition for certiorari are contained therein and made a part thereof."

The defendant in certiorari traversed the answer of the judge of the city court in many particulars, all of which it is not necessary to set forth, and also filed certain exceptions to the answer of the respondent. The court did not pass on the exceptions and tried the issues on the traverse without a jury, found in favor of the traverse, and the petition for certiorari was "denied." The exception here is to the finding on the traverse and the denial of the certiorari. The judge's finding on the traverse recited, among other things, the following: "The within traverse coming on for hearing, and the judge of the city court having testified that no formal organization of court on second Monday in October was made, but plaintiff's counsel after ten o'clock on Monday did ask for a default judgment and was advised by said judge that if no defense was filed he would grant a default judgment on Tuesday; that on Tuesday plaintiff's attorney asked for and was granted a default judgment without any formal opening of court, it being the idea of said judge that said court was convened by operation of law on Monday morning, and that he had a right to consider any matter that had not been continued, and that in rendering said judgment he was entering it in open court. It was further agreed by the parties that the minutes of the City Court of Cairo showed that on said date of the second Monday in October the judge of said court passed an order appointing a solicitor pro tem., to act during the absence of the solicitor, said order reciting that it was signed, ``In open court, this 14th day of October, 1946;' and that on the same date nine pleas of guilty are recorded as having been entered in the ``City Court of Cairo at the October Term, 1946,' and sentences in each of said criminal cases signed up by the judge of said court on said date."

There are two questions involved. The first is whether the failure to formally organize the court on the first day of the term resulted in adjournment of the court. The second question is whether a whole appearance docket must be called before a case may be marked in default and a final judgment rendered under the act creating the City Court of Cairo and amendments thereto.

1. The 1919 amendment to the act creating the City Court of Cairo provides: "That the terms of the City Court of Cairo shall be held quarterly on the second Mondays in January, April, July and October. The judge of said City Court shall have the power to hold said court in session from day to day for a period not longer than two weeks from the beginning of each term, and he may adjourn the same to any day designated by him under the same rules as are provided by law for the adjournment of the superior court. . . Said court shall be open at any time for the trial of criminal cases when jury trial is waived." Ga. L. 1919, pp. 442, 444, sec. 5. The superior court rule as to adjournment prevails in the City Court of Cairo, insofar as adjournments in vacation are concerned, there being no conflict between the City Court Act and the superior court rule. Code § 24-3008 provides that no superior court shall be adjourned in vacation except as provided in Code § 24-3007, which is not applicable here. Since the court was not adjourned in vacation under Code § 24-3007, and was not adjourned by the judge during the term, the court term remained open. Of course, the term opened on the day provided by law, without the act of the judge or anybody else and necessarily remained open until adjourned by the judge or by operation of law. The fact that a court is not formally organized on the first day of a term does not have the effect of adjourning the court, whatever is meant by the expression, "formally organized." We think that the expression as used in this record is ambiguous. The petitioner for certiorari and the judge of the city court evidently used the expression as meaning an announcement of the opening of court by an officer and the swearing in of bailiffs, jury, etc. There can be no informal organization of a court, and it may be organized without the customary routine organization by the performance of judicial functions. It would seem that in this sense the court was organized on Monday morning. While the act provides that the court shall be open at any time for the trial of criminal cases when a jury trial is waived, when non-jury criminal matters are disposed of during a regular term of court it will be conclusively presumed that they are disposed of at the regular term. Any other holding might result in confusion worse confounded. Since the term of court was not adjourned, the judge had authority to announce his intention to enter a default judgment on Tuesday following the day the court term opened, and to enter the default judgment and final judgment, insofar as the first point is concerned. There is no question of due process, otherwise involved, such as lack of notice, etc.

2. The City Court Act involved makes the return term the trial term as to cases in default. Ga. L. 1906 pp. 191, 198. It also provides that after the rendition of a final judgment all right of opening a default shall terminate. Since a final judgment was entered, such judgment can not be attacked unless the default judgment was illegally entered. The petitioner for certiorari contends that the default judgment and, consequently, the final judgment are void because the appearance docket was not called. Only two cases were called on the appearance docket We think that the sensible and reasonable answer to this question is that, if a case on the appearance docket is called by the right person at the right time, the appearance docket is called insofar as that case is concerned. The cases on the docket are separate and distinct, and what is done with one has nothing to do with what is or is not done with another and action as to one can not affect the result of another, and it is of no concern to one defendant what is done with reference to another case. So we hold that the case was called at the right time and place by the right officer, and that the docket was called as to this case. Since this is true, the rendition of the final judgment was proper and can not now be attacked.

The court did not err in finding in favor of the traverse and in denying the certiorari.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.