Opinion
42903.
SUBMITTED JUNE 6, 1967.
DECIDED JUNE 12, 1967.
Action on account. Cobb Superior Court. Before Judge Henderson.
Payne, Barlow Green, William O. Green, Jr., for appellants.
L. S. Cobb, Doyle C. Brown, for appellee.
There is no error in permitting the plaintiff in a suit on open account to produce evidence before a jury and take a verdict when, upon a regular call of the case the defendant, though having demurred to and answered the petition, failed to appear in person or by attorney to defend or to move for a continuance upon some legal ground.
SUBMITTED JUNE 6, 1967 — DECIDED JUNE 12, 1967.
Lee Hamby brought suit on open account against Rakestraw Hay, filing his action on July 22, 1966, in the Civil and Criminal Court of Cobb County. It was duly served, and thereafter the defendants demurred generally and specially and answered, denying the indebtedness for reasons stated in the answer. It appears that an order was entered on the demurrers October 20, 1966, though the order is not brought up in this record. However, it appears that the plaintiff amended his petition December 5, and thereafter the case was assigned for trial on February 13, 1967. When the case was reached upon call of the calendar in regular order, plaintiff answered "ready," but there was no appearance by or on behalf of the defendants. The court waited for three minutes after the call, as provided in Code § 24-3341, and, when there was still no response by or on behalf of the defendants, and no motion for any continuance made or having been made, permitted the plaintiff to proceed before a jury to prove his case and obtain a verdict. Judgment was entered on the verdict and in due course execution issued, after which on March 14, 1967, plaintiff's counsel served interrogatories on the defendants, as authorized by the Deposition and Discovery Act ( Code Ann. § 38-1201) seeking information as to what money, property or sources of income the defendants might have from which the fi. fa. could be satisfied. Objections were filed April 13, 1967, to the interrogatories, and on April 28, 1967, defendants filed in Cobb Superior Court a motion to set aside the judgment which plaintiff had obtained in the Civil and Criminal Court, alleging it to be "void on its face" because under the provisions of Code § 24-3341, the court should have stricken the defendants' answer and entered a default judgment for the plaintiff instead of permitting him to prove his case before a jury and obtain a verdict.
From a dismissal of the motion to set aside (on oral motion) defendants appeal.
1. Although the motion to set aside was brought in Cobb Superior Court because "the Civil and Criminal Court of Cobb County is a court of limited jurisdiction and for want of power cannot afford full relief to [movants]" who "are entitled to a restraining order and injunction restraining the defendant herein and he acting through his attorney L. S. Cobb from doing or taking any other or further action to enforce the judgment herein alleged to be void on its face," there was no prayer for any equitable relief other than pending a hearing on the motion "for an order restraining . . . Lee Hamby, either himself or through his attorney L. S. Cobb or through any other party from further action of any kind or character in the enforcement of the judgment. . ."
Apparently a hearing was held on the same day the motion was filed and no restraining order was issued. However, there is no enumeration of error on the denial or the granting of any equitable relief, and the appeal is properly brought to this court.
2. There is no merit in the contention that the court should have stricken the defendants' answer and entered a default judgment (though it might have done so), instead of permitting the plaintiff to introduce before a jury testimony and evidence sustaining the allegations of the petition, under which the jury returned a verdict for the amount sued for upon which judgment was entered.
There has been, and perhaps still is, some confusion as to what a plaintiff must do to obtain his judgment upon an open account when the defendant fails to appear and defend. Several changes in the law have been made by the General Assembly from time to time. An excellent statement of the situation is to be found in 1 Enc. of Ga. Law, Accounts and Accounting, § 14, where a full legislative history of Code § 110-401 is related. It will be observed that as that Code section now stands it appears that a plaintiff who sued on an open account must prove his case and obtain a verdict before taking a judgment — even a default judgment. Consequently, if the defendant's answer here had been stricken when there was no appearance upon its call for trial plaintiff would still have had to obtain a verdict. There would have been no difference in the procedure, nor in the effect of the verdict. If the failure to strike defendant's answer was error, it was certainly harmless as to him.
Judgment affirmed. Felton, C. J., and Hall, J., concur.