Gunn v. Airbank of America Inc.

1. "Where this court has jurisdiction of the writ of error on a main bill of exceptions, it will consider and decide all questions properly made by a cross-bill of exceptions, although such questions may be interlocutory in character, where, under the judgment of this court, the case is to be again tried in the lower court."

2. Where the questions presented in the cross-bill of exceptions are controlling upon the case as a whole, it will be considered first, and if the judgment excepted to therein is reversed, the main bill of exceptions will be dismissed.

3. All defensive pleading must be filed in the City Court of Athens on or before the first day of the term to which the case is returnable. The filing of a demurrer, plea, answer, or other defense on or before the first day of the term to which the case is returnable debars the filing of other defenses at subsequent times.

4. The filing of a demurrer, plea, answer, or other defense on or before the first day of the term to which the case is returnable prevents the case from being subject to a judgment of "in default."

5. Where there is no demand for trial by jury and no issuable defense properly before the City Court of Athens, it is error for the trial judge to refuse to enter judgment without the intervention of a jury.

DECIDED DECEMBER 1, 1947. ADHERED TO ON REHEARING DECEMBER 20, 1947. Airbank of America Inc., hereinafter referred to as the plaintiff, brought suit in the City Court of Athens against C. B. Gunn, hereinafter referred to as the defendant, upon a combined note and chattel mortgage in the amount of $15,480. This suit was returnable to the November, 1946, term, which commenced on November 18, 1946. On November 14, 1946, the defendant filed a general demurrer to the petition. He entered no other defensive pleading on or before the beginning of the term. On November 14, 1946, he also filed an equitable petition in the Superior Court of Clarke County seeking to enjoin the plaintiff from proceeding in the city court, and certain other equitable relief. To this petition the plaintiff filed a general demurrer, which was sustained, and the defendant took no exception.

On January 25, 1947, the defendant filed an answer in the city court, and the plaintiff filed a motion to strike the answer on the ground that the answer was filed too late.

On February 5, 1947, the trial judge of the city court overruled the defendant's demurrer to the petition. The defendant did not except to this ruling.

On February 7, 1947, the trial judge sustained the plaintiff's motion to strike the answer. The plaintiff then made a motion to enter judgment for the full amount sued for, plus interest and costs. This motion was overruled, and the trial judge marked the case in default. To this ruling the plaintiff excepted. On motion of the defendant, the default was opened, and the defendant was allowed to refile his answer. The plaintiff excepted.

The plaintiff filed general and special demurrers to the answer, which were overruled, and the plaintiff excepted.

The case proceeded to trial. At the conclusion of the evidence the plaintiff moved for a directed verdict, and stated that, if a verdict were directed, the plaintiff would write off all the interest and $1500 on the principal. The court directed a verdict in favor of the plaintiff in the amount of $12,000. The defendant filed a motion for new trial based on the general and three special grounds. This motion was overruled, and the defendant excepted.

The plaintiff filed a cross-bill of exceptions, in which it contends that the court erred in marking the case in default, after overruling the defendant's general demurrer, without first allowing the plaintiff, on motion, to enter judgment for the full amount sued for plus interest and costs. It is contended further that the court erred in allowing the defendant to open the default and refile his answer, and in overruling the plaintiff's general and special demurrers to the answer. 1. The defendant made a motion in this court to dismiss the cross-bill of exceptions, on the ground that this court is without jurisdiction because the cross-bill excepts to and assigns error only on interlocutory and antecedent rulings of the City Court of Athens, and does not assign as error the final judgment of the city court.

The original record in the case of Sheppard v. DanielMiller Co., 7 Ga. App. 760 (68 S.E. 451), shows that a motion was made to dismiss the cross-bill of exceptions on the ground, among others, that "said bill of exceptions fails to allege that there has been any final judgment in the court below and contains no exception to any final judgment, and seeks to present for review an interlocutory ruling pending the controversy in the trial court." The court held that the rule as to the final disposition of a case in the court below, which applies to cases brought to this court by main bill of exceptions, does not apply to questions made by a cross-bill of exceptions, and "where this court has jurisdiction of the writ of error on a main bill of exceptions, it will consider and decide all questions properly made by a cross-bill of exceptions, although such questions may be interlocutory in character, where, under the judgment of this court, the case is to be again tried in the court below." SeePhillips v. Bridges, 20 Ga. App. 489 (3) (93 S.E. 115); Code, § 6-901; Powell v. Powell, 179 Ga. 817, 819 (177 S.E. 566).

2. Since the questions presented in the cross-bill of exceptions are controlling upon the case as a whole, it will be considered first; and inasmuch as the judgment therein is reversed, the alleged errors in the main bill of exceptions will not be considered. Phillips v. Bridges, supra; Stewart v.Latimer, 197 Ga. 735 (3) (30 S.E.2d 633).

3. As shown above, the defendant properly filed a general demurrer to the petition before the beginning of the November term of the City Court of Athens, and filed no other defensive pleading until he filed his answer on January 25, 1947.

The question presented for determination is whether, under the acts governing the City Court of Athens which abolish the appearance term, the general demurrer filed by the defendant before the beginning of the November term, which is the return term, debars the filing of other defenses at times subsequently to the first day of such November term.

The act of 1894 (Ga. L. 1894, p. 210, 211), relative to the City Court of Athens, then the City Court of Clarke County, provides: "That all civil cases shall be returnable to and liable at the regular quarterly term of said city court, after twenty days having elapsed from the filing and docketing on the proper docket of the court, and the same shall be served on the defendant at least fifteen days before the term at which the case is returnable and liable. The appearance term of said court is here by abolished, and the defendants shall file their defense on or before the first day of said term of said court, and said cases shall then be tried unless continued, postponed, or passed by the court for such causes and under such rules as cases are now continued, postponed, or passed, or unless not reached by the court."

We are of the opinion that, under the provisions of the act creating the City Court of Athens, supra, all defensive pleading must be filed in the City Court of Athens on or before the first day of the term to which the case is returnable. See Fountain v. Ragan-Malone Co., 141 Ga. 58, 59 (80 S.E. 306). We also think that the filing of a demurrer, plea, answer, or other defense (in this case a demurrer) on or before the first day of the term to which the case is returnable debars the filing of other defenses at times subsequently to the first day of such term. As stated in Harper v. Tennessee Chemical Co., 37 Ga. App. 433, 435 (140 S.E. 408): "In such a case the defendant is restricted to the defenses entered, with such aid only as can be derived from proper amendments thereto . . since the filing of a defense debars the filing of subsequent defenses, except by way of amendment, as effectually as would a judgment of ``in default.' If the defendant's pleadings can not, even by amendment, be made to serve, he can not, upon their being stricken, substitute new defenses, as though none had been filed. The rule which allows the belated filing of a plea in a case in actual default, but which has not been so adjudged, does not authorize the ``successive presentation of new defenses at later terms as old ones failed and were stricken.' . . Accordingly, since all the right a defendant has to file belated pleas in cases actually in default but not so legally adjudged is derived from the practice act referred to [Code, 1933, § 110-401] . . he is bound in his privileges by the limitations of the act relied on, and where he has actually filed ``a demurrer, plea, answer, or other defense,' so as to render the section cited inoperative, he can not be allowed, by virtue of such section, to take advantage of a failure to render a judgment of ``in default.'"

The Supreme Court, in Miami Butterine Co. v. Frankel,190 Ga. 88, 93 (93 S.E.2d 398), stated: "In Harper v.Tennessee Chemical Co., 37 Ga. App. 433 (4) (140 S.E. 408), that court held that where a defendant files a demurrer . . at the first term, so as to prevent the case from being subject to a judgment of ``in default,' the defendant is restricted, at a subsequent term, to the defense made at the first term, ``with such aid only as can be derived from proper amendments thereto.'"

The act creating the City Court of Athens seems to endeavor to speed up the trial and disposition of cases brought in such court. Bearing in mind that said act abolishes the appearance term of said court and provides that the defendants shall file their defense on or before the first day of the term to which the case is returnable, where a defendant files a demurrer in the City Court of Athens on or before the first day of the term to which the case is returnable, so as to prevent the case from being subject to a judgment of "in default," the defendant is restricted at times subsequently to the first day of such term to the defense made on or before the first day of such term, with such aid only as can be derived from a proper amendment thereto.

In the instant case, the filing of the general demurrer before the first day of the term to which the case was returnable prevented the case from being subject to a judgment of "in default." Harper v. Tennessee Chemical Co., supra. We think that the trial judge erred in allowing the defendant to file his answer, because it was offered too late, and that the trial judge erred in marking the case in default.

4. Code (Ann.) § 2-3907, provides: "The court shall render judgment without the verdict of a jury in all civil cases, except actions ex delicto, where no issuable defense is filed except as otherwise provided in this Constitution, and subject to the right of trial by a jury on written demand of either party." The act of 1879 (Ga. L. 1878-79, pp. 291, 296, § XXVI), provides: "The Judge of said City Court shall have power and authority to hear and determine all civil cases over which said Court has jurisdiction, and to give judgment and award execution thereon without the intervention of a jury: provided, always, that either party, in any such case, shall be entitled to demand and have a jury to try said case, which demand shall be in writing, and signed by himself or his counsel, and may be entered at any time prior to the introduction of any evidence upon the trial of the case."

The record discloses no demand by the defendant for a trial by jury. Since there was no issuable defense properly before the court, after overruling the defendant's general demurrer to the petition, the trial judge erred in not granting the plaintiff's motion not to mark the case in default, but to enter judgment without the intervention of a jury.

Judgment reversed on the cross-bill of exceptions; main billdismissed. Gardner and Townsend, JJ., concur.

ON REHEARING