Opinion
39414.
DECIDED APRIL 4, 1962.
Complaint. Augusta Municipal Court. Before Judge Mixon.
Cornelius B. Thurmond, Jr., Sanders, Thurmond, Hester Jolles, for plaintiff in error.
Maurice Steinberg, contra.
1. The judgment of the trial court, rendered November 22, 1961, overruling the motion of the plaintiff to dissolve the stay of execution, if granted as contended for by the plaintiff, would have been a final judgment, and the assignment of error on such judgment is sufficient to give this court jurisdiction of the writ of error.
2. The brief of evidence in the case sub judice conforms to the requirements of the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., p. 440; Code Ann. § 70-305).
3. "`Generally speaking, the construction placed upon its own rules by a court of original jurisdiction is conclusive; and only in cases where it is clear that the construction given is wrong, and that injustice has been done, will the discretion of the judge of such a court construing its rules be interfered with by a reviewing court. 8 Am. Eng. Enc. L. (2d Ed.) 31, and cases cited.' Roberts v. Kuhrt, 119 Ga. 704 (1) ( 46 S.E. 856). See also Frost v. Pennington, 6 Ga. App. 298 (2) ( 65 S.E. 41)." Perry v. Maryland Cas. Co., 102 Ga. App. 475, 477 ( 116 S.E.2d 620).
4. The judgment setting aside the default judgment against the garnishee in the present case was not based upon any written rule of the trial court but was based on a long standing practice which was not followed because the judge of such court was absent because of illness and the judge appointed by such judge as "presiding judge" was either not familiar with such practice or was not aware that the garnishee came within the category to whom such practice was applicable.
5. The judgment of the trial court was final after the end of the term in which it was rendered and could not be set aside, altered, etc., except for a defect appearing on the face of the record. See American Mut. Liability Ins. Co. v. Satterfield, 88 Ga. App. 395 (2) ( 76 S.E.2d 730), where it was held that a judgment could not be set aside at the next term where counsel for the losing party was not notified of such judgment until such next term even though the presiding judge, in accordance with a long standing practice, had promised to notify counsel of its judgment when rendered and had failed to do so. See also Jones v. Bibb Brick Co., 120 Ga. 321 ( 48 S.E. 25).
6. What has been said above controls each ruling complained of by the plaintiff in error and the judgments of the trial court (overruling the demurrers to the court's motion to show cause why the default judgment should not be set aside, overruling demurrers and renewed demurrers to the defendant's answer filed after such default judgment was rendered, and overruling the motion to dissolve the stay of execution), must be reversed.
Judgment reversed. Frankum and Jordan, JJ., concur.
DECIDED APRIL 4, 1962.
Safe-Way Finance Company obtained a default judgment against Joseph Ashley in the Municipal Court of Augusta and thereafter, in the same court, an affidavit and bond in garnishment was filed and a summons of garnishment was directed to Standard Bag Company and served on April 28, 1961, returnable on the fourth Monday in May, 1961. On July 13, 1961, the plaintiff obtained a default judgment against the garnishee and on August 10, 1961, the presiding judge of such court, on his own motion, issued a judgment which was served on the plaintiff and the garnishee, directing them to show cause why the default judgment against the garnishee should not be vacated and set aside. Such judgment also ordered a stay of such judgment and the execution issued thereunder. The plaintiff filed a motion to dissolve such stay and demurred to such order as well as filing a defense thereto. Before the hearing on the rule nisi the garnishee was allowed to file an answer nunc pro tunc to the summons of garnishment and an amendment thereto as well as an answer to the order of the court dated August 10, 1961. The plaintiff also demurred to the answer to the summons of garnishment allowed filed nunc pro tunc and renewed such demurrers after the amendment was filed. The trial court overruled the plaintiff's demurrers and on a final hearing, on November 22, 1961, of the question presented by the court's order of August 10, 1961, overruled the motion to dissolve the stay of judgment and execution and set aside the default judgment against the garnishee. It appears from the record that the default judgment was set aside because of a long standing practice in the trial court not to require certain large concerns to answer garnishment proceedings in the manner prescribed by law but to permit them to notify the clerk whether or not the judgment debtor was in their employ and if so employed to deduct from his wages each pay period and hold the same for the trial court. The plaintiff now assigns error on such judgment entered on November 22, 1961, as well as on the antecedent judgments adverse to it. The garnishee filed a motion to dismiss the writ of error because no judgment rendered was subject to review and because the evidence adduced on the trial was not properly briefed.