1. The provisions of the New Practice Act relating to judgments by default do not apply to cases in the City Court of Albany.
2. Where a case in the City Court of Albany, in which no defensive pleadings have been filed, is tried without being marked "in default" on the court docket, the case is considered in default.
4. The grant of a new trial upon the issue of damages is proper where the trial court failed to instruct the jury in any manner as to the proper measure of damages on the trial of a case which was in default.
Eddie Mills filed his suit in the City Court of Albany against William Quick and Alford Brothers Company, seeking to recover damages to his personal property caused by defective condition of a trailer rented from the defendants. The suit was filed on August 12, 1958, and service was perfected on August 16, 1958. The case was returnable to the September term. No defensive leadings were filed and at the November term the case was tried before a jury as a default proceeding. The plaintiff testified at the trial that on August 31, 1957, he had rented a 4-wheel trailer from the defendant Quick as agent of the defendant company; that the defendants represented to him that the trailer was a fit and suitable vehicle for the purpose of transporting household goods and other small articles; that on the same date he proceeded into the State of Florida with the trailer, loaded with household goods and other articles, attached to the rear of his car; than due to the defective condition of its hitch, which was not previously apparent to him, the trailer became disengaged from his automobile while he was driving in a careful and cautious manner at a speed of 45 miles per hour; that the trailer then overturned, causing damage to his property therein in the amount of $2,069. The plaintiff further testified that his property had a market value of $2,669 prior to the collision and the market value thereafter was $600.
On the conclusion of said evidence, the court gave no instructions to the jury. The plaintiff's counsel thereupon asked one of the 12 jurors seated in the box to sign a verdict in favor of the plaintiff, and said juror immediately signed same without the jury retiring to the jury room. The court gave judgment for the plaintiff on November 10, 1958, in accordance with the verdict.
Two days later, the defendants filed a petition to set aside the verdict and judgment, alleging in substance that they had personally come to the courthouse on the second Monday in September and were informed by court officials that there was no court on that day and it was not necessary for them to remain. The petition further alleged that the damage to the plaintiff's property was due to his own negligence in overloading the trailer and losing control of his automobile and that had defendants known to come back to court on November 10, they could have obtained a verdict in their favor; that the court did not charge the jury as to the measure of damages nor allow them to deliberate on the amount thereof, and the verdict and judgment were therefore void; that the suit was not marked "in default" and since defendants had paid all costs and filed their petition within 30 days after verdict and judgment they were entitled to open up said default as a matter of right. The petition further offered to plead instanter and announced ready for trial. On November 18, 1958, defendants filed an application to open default upon substantially the same grounds. The plaintiff thereupon filed his demurrers to both said petition and application and moved to strike same.
On December 5, 1958, the defendants filed a motion for new trial on the general grounds and subsequently amended it, setting forth 6 special grounds relating to the failure of the court to instruct the jury in any particular as to damages or the measure thereof and in failing to allow them to deliberate on the case.
On the call of the case by the court on the date of trial, the case was marked "in default" on the court calendar, but was not so marked on the docket until December 5.
The court subsequently overruled the plaintiff's demurrers and granted the petition to set aside the verdict and judgment and the application to open the default. The defendant's motion for new trial was also granted. To these rulings the plaintiff excepts.
Chapter 110-4 of the Georgia Code of 1933, "Judgment by Default", was comprehensively revised by 18-23 of the New Practice Act (Ga. L. 1946, pp. 761, 777-779) and subsequent amendments. The first question for decision is whether the revised provisions relating to judgments by default are applicable to cases in the City Court of Albany. Section 25 of the New Practice Act (Ga. L. 1946, p. 780) provides, "The provisions of this section of these rules shall apply to all suits in the superior courts of the State except those proceedings specifically excepted in Paragraph 24 hereof, and shall also apply to all matters pertaining to service, pleading and practice in cases in city courts where not inconsistent with the acts creating such city courts or acts amendatory thereof." (Emphasis added).
Section 42 of the act creating the City Court of Albany (Ga. L. 1897, pp. 408-419) provides (p. 418): "Be it further enacted by the authority aforesaid, that the first term of said court to which a civil case is brought shall be the appearance or return term; the second shall be the trial or judgment term; and all the laws, rules and practice in said court with reference to the terms thereof, and to the continuance, pleadings and trial of causes therein, shall be the same as in the superior court, unless otherwise provided in this act."
The act creating the City Court of Albany expressly provides for appearance and trial terms. The New Practice Act does away with the appearance term (see Maxwell v. Arnold, 76 Ga. App. 576, 579, 46 S. E. 2d 623) and provides for default procedures which are repugnant to appearance or return terms (see Code 110-401 as amended). It is therefore apparent that the default provisions of the New Practice Act are inconsistent with the act creating the City Court of Albany and, under the provisions of Section 25, do not apply.
The plaintiff proceeded at the trial term to take a judgment without the case having previously been marked "in default" on the court docket, as provided in 110-401 of the Code of 1933, which is still applicable to the City Court of Albany under the above ruling. Where such a case is not marked "in default" on the docket, although the defendant might thus, at the trial term and before judgment, file his defensive pleadings, if such is not done at the time the case is submitted to trial, it is considered in default and the plaintiff is entitled to take a verdict and judgment. Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568, 569 (150 S. E. 569). Guthrie v. Spence, 55 Ga. App. 669 (191 S. E. 188). After a verdict has been taken and final judgment rendered thereon, there is no authority for filing an application to open the default upon the grounds urged by the defendants, and the plaintiff's demurrers to said application should have been sustained.
Moveover, since the judgment under attack was based on the verdict of a jury, it is not subject to revision or vacation under the plenary powers of the court to control its orders and judgments during the term at which they are rendered. Georgia Ry. &c. Co. v. Hamer, 1 Ga. App. 673 (58 S. E. 54). Grogan v. Deraney, 38 Ga. App. 287, 290 (143 S. E. 912). Since the judgment was based on the verdict of a jury and since it was not sought to be set aside on account of perjury or for any defect not amendable which appears on the face of the record or pleadings, the petition of the defendants must necessarily be construed as seeking to set aside the judgment for irregularities not appearing on the face of the record which are not proper subjects for the grant of a new trial. Thus measured, it sets forth no legal reason for setting aside the verdict and judgment, since it clearly appears from the facts alleged that the defendants failed to appear and plead solely in consequence of their own misunderstanding, not induced by any acts or conduct of the plaintiff and unmixed with any sort of providential cause. Schofield's Sons Co. v. Vaughn, 40 Ga. App. 568, 570 supra. The petition to set aside showing on its face that it is without merit, the demurrer thereto should have been sustained.
While the defendants are not entitled to have the default opened or the judgment set aside for the reasons stated, they are entitled to a new trial upon the issue of damages because of the failure of the court to give the jury any rule for estimating or determining the damages claimed. Atlanta, B. & A. Ry. Co. v. Barnwell, 138 Ga. 569 (5) (75 S. E. 645); Southern Ry. Co. v. O'Bryan, 112 Ga. 127 (37 S. E. 161). The fact that a case is in default does not obviate the necessity of instructing the jury as to the proper measure of damages so as to guide it in its deliberations upon the amount of its verdict. To hold otherwise would defeat a basic purpose of the legislation requiring submission of the issue of unliquidated damages to the jury.
The judgments of the court granting the petition to set aside the verdict and judgment and the application to open the default and overruling the demurrers thereto are reversed. The judgment granting a new trial is affirmed, but only to the extent that it grants a new trial in respect to unliquidated damages, and to the extent that it grants a new trial upon any other issues, the judgment is reversed.
Judgments affirmed in part, reversed in part. Quillian and Nichols, JJ., concur.