Opinion
36506.
DECIDED FEBRUARY 12, 1957.
Affidavit of illegality. Before Judge Wright. Fulton Civil Court. October 10, 1956.
D. B. Phillips, Howell Edwards, for plaintiff in error.
Tindall Tindall, Joseph D. Tindall, contra.
The trial judge did not err in dismissing the affidavit of illegality and the motion to arrest the judgment.
DECIDED FEBRUARY 12, 1957.
Automobile Finance, Inc., filed an action in Fulton Civil Court on April 12, 1956, to recover on a note and a retention-of-title contract. The defendant filed his answer denying the plaintiff's right of recovery.
On May 31, 1956, the case went to trial and the plaintiff obtained a judgment against the defendant which read: "The within case having come on regularly for a hearing and after introduction of evidence, it is ordered that the plaintiff have judgment against the defendant in the sum of $729.69 together with $ __________ for cost of court.
This 31st day of May 1956."
The defendant filed an affidavit of illegality and a motion to arrest the judgment. The plaintiff made a motion to dismiss both the affidavit of illegality and the motion to arrest the judgment. The trial judge granted the motion and the defendant excepted.
1. The defendant insists that the judgment was void because the plaintiff obtained a default judgment at the first term and his answer had not been dismissed. The judgment read in part that "The within case having come on regularly for a hearing and after introduction of evidence, it is ordered that the plaintiff have judgment against the defendant."
The defendant did not attack the recital of fact in the judgment as being false and the judgment must be accepted as true. Although the defendant did not make an appearance, the plaintiff must be presumed to have introduced evidence and the judgment obtained was not a default judgment.
2. The defendant further insists that the case should not have been tried at the first term. With this contention we cannot agree. The act governing the Civil Court of Fulton County provides:
"The first term shall be the trial term in all matters triable in said court." Ga. L. 1925, p. 378.
The Civil Court of Fulton County is not subject to the rules of uniformity laid down in Code (Ann.) § 2-4401. Mewborn v. Weitzer, 15 Ga. App. 668 (1) ( 84 S.E. 141); Code (Ann.) § 2-4201. The trial judge did not err in dismissing the affidavit of illegality and the motion to arrest the judgment.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.