1. While the failure of the trial court to pass upon the defendant's special demurrer before entering upon a hearing on the facts of the case was error, nevertheless, this court having found by an examination of the pleadings that the demurrer was without merit, the failure of the court to pass upon the demurrer was harmless and not reversible error.
2. Proceedings in a justice court are not attended with the technicality and precision requisite in courts of record, but such tribunal is an informal court, and great liberality is indulged in proceedings therein so as to obtain substantial justice.
(a) Where, as here, it is shown by the record that the court was open, though not with the formality of being sounded or cried, and where the defendant had filed a timely special demurrer to the original summons in a suit on a note, the original of which was attached to the summons and was in court, but the defendant had not filed a defensive answer or plea, the defendant was in default, except as to the special demurrer, which was without merit. Accordingly, where, after a conference between the parties in court, the announcement was made by them that they were unable to reach a settlement as they had been trying to effect after appearing in court, and the court thereupon stated that it was entering judgment for the plaintiff, and no remonstrance was made by the defendant or was any permission sought to file, or any effort made to file, any defensive answer or plea, the court did not err in entering the default judgment for the plaintiff.
Note $19.36. Int. $26.32, total $45.68." No verification is shown.
2. On April 5, 1949, the petitioner was duly and legally served with a copy of the said summons and cause of action, and on April 8, 1949, the petitioner filed his special demurrer to the summons and cause of action, praying that the same be dismissed, on the ground that no copy of the note sued on was attached to the summons, a copy of which special demurrer was attached to the petition as Exhibit "B" and made a part thereof.
3. On April 27, 1949, at the regular April, 1949, term of the said justice court the justice of the peace of the said court awarded judgment in favor of R. E. Alexander and against the petitioner for $19.36 principal and $26.32 interest and future interest on the principal sum at 8 percent per annum and all costs. The said justice of the peace did not, before judgment in the said case, pass upon the petitioner's special demurrer and has not at any time passed upon the demurrer, which was duly filed with the other papers in the case, and of which the said justice of the peace had full knowledge.
4. The petitioner's special demurrer should have been passed upon by the said justice and should have been sustained.
5. The said judgment was rendered shortly after 10 o'clock a.m. on the regular day of court, but at the time it was rendered the constable or anyone acting for him had not opened the court. The case of R. E. Alexander v. Oscar Knighton has not been sounded and neither party had announced ready for trial. No testimony was introduced and no evidence of any kind was introduced, and the note purportedly sued on was not introduced in evidence. The petitioner was present and ready to plead to the said cause of action if the same had been amended to meet his special demurrer so that the petitioner could properly answer the cause of action.
6. The petitioner then and there excepted to the said judgment, and now excepts to the same, and assigns the same as error for the reason that the judgment was without any evidence to support it and contrary to law for the reason that no evidence of any kind was introduced at the alleged trial, and the petitioner was not permitted to answer or testify, and the said case had not been sounded by the justice of the peace, and for the further reason that the court had not been legally opened.
7. To the failure and refusal of the justice to pass on the said demurrer the petitioner excepted, now excepts, and assigns the same as error and contrary to law for the reason that it should have been passed on before judgment was awarded in the cause.
8. To the failure of the justice to sustain the said demurrer the petitioner excepted, now excepts, and assigns the same as error because it is contrary to law for the reason that no copy of the note sued on was attached to the summons as required by law.
9. At all times during the proceedings herein referred to the Honorable T. E. Grier was justice of the peace in the said district, did file all papers in the cause, did preside at the alleged trial and render therein the aforesaid judgment. 10. The petitioner comes now after having complied with the laws in such cases provided and presents this his petition for certiorari within 30 days from the final determination of the case.
The petition concluded with the usual prayer for certiorari.
The petition was sanctioned by the judge of the superior court and certiorari issued, and the said justice of the peace filed an answer as follows:
1. On March 23, 1949, R. E. Alexander filed suit in the said district G. M. against Oscar F. Knighton, consisting of summons as set out in the answer and to which was attached by a gem clip the original note sued upon and referred to in the summons, the same being a promissory note for the principal sum of $19.36, dated February 9, 1932, due September 15, 1932, made by Oscar F. Knighton, payable to the order of R. E. Alexander, and bearing interest from its date at the rate of eight percent, per annum.
2. When making out the copy of the summons and cause of action (which was later served on the defendant Knighton) the justice made out the summons exactly as the original, but instead of attaching thereto an exact copy of the note, all that he filled out and attached to the summons were the following words and figures: "Blakely, Ga. March 23, 1949. Oscar F. Knighton in account with R. E. Alexander. Sept. 15, 1932. Note $19.36, int. $26.32, [total] $45.68."
3. On April 8, 1949, Oscar F. Knighton filed a demurrer "to the cause of action, and prays that the same be dismissed, for the reason that no copy of the note sued on is attached to the summons.
4. "On April 27, 1949, the regular day for holding said justice court, shortly after ten o'clock a.m., the defendant Oscar F. Knighton and Mr. Philip Sheffield, an attorney at law, came into said justice court, and the suggestion was made by one of them that the case might be settled if the plaintiff, Mr. Alexander, could be reached. Accordingly, the plaintiff was sent for and came in, and Alexander and Knighton had a lengthy conversation but were not able to reach a settlement. When it was announced that settlement could not be reached the undersigned justice of the peace announced that he was rendering judgment for the plaintiff Alexander, and he did thereupon render judgment for the plaintiff against the defendant for $19.36 principal, the further sum of $26.32 as interest thereon to date of judgment, together with the costs of the suit. No objection was then made by either the defendant or said attorney, and neither of them asked for permission to answer, or for time to plead, but, upon said announcement being made by the undersigned, the defendant and said attorney simply arose and left the courtroom.
"5. The undersigned justice of the peace did not pass any formal order overruling defendant's demurrer, and the demurrer was not mentioned on said April 27, 1949.
"6. There was no evidence formally introduced on the said occasion, as the original note sued on was attached to the original summons and no answer had been filed by the defendant. Nor was the case formally sounded, nor was any inquiry made as to announcements as to whether the parties were ready or not.
This answer was not traversed, and after argument by counsel and consideration of the cause by the court the certiorari was overruled and dismissed. The exception here is to that judgment.
(After stating the foregoing facts.) I. The answer of the justice admits, as asserted by the applicant for certiorari, that the special demurrer was not passed upon, and adds that it was not brought to his attention. It was the duty of the justice to pass upon the demurrer before entering upon a consideration of the facts and such omission is undoubtedly error. The error is not in all cases, however, harmful and reversible. In Seaboard Air-Line Ry. Co. v. Jolly, 160 Ga. 315 (2) (127 S. E. 765), it was ruled: "While, as we have ruled above, the trial court should have passed upon the demurrers before proceeding with the trial of the case upon the facts, nevertheless it was competent for the Court of Appeals to examine the special demurrers, and if, after examination, they were found to be without merit, to so rule, and to hold that the error of the trial judge in failing to pass upon them was harmless." See also Firemen's Insurance Co. v. Oliver, 46 Ga. App. 507, 509 (167 S. E. 909). Was the error harmless here? The ground of the demurrer was that "no copy of the note sued on is attached to the summons." It is shown by the record that no copy of the note was attached to the copy of the summons, the justice having attached only a memorandum showing that the summons was as to a suit upon a note dated September 15, 1932, for a stated amount of principal and a stated amount of interest. This memorandum undoubtedly misled counsel for the defendant to conclude that no copy of the note was attached to the original summons, whereas in fact, though no such copy was attached, the note itself was affixed to the original summons, and this constituted a sufficient showing of the cause of action as required by the statute. It is obvious, therefore, that the demurrer was without merit, and the failure to rule thereon was not harmful and reversible error.
2. The judgment is complained of because: (1) The court was not legally open, the case was not sounded, and the defendant was not permitted to plead but judgment was summarily entered against him. (2) The note was not introduced in evidence. (3) The defendant was not properly served. In answer to contention (1) it must be said that the act of the petitioner in seeking the writ of certiorari commits him to the legal proposition that the judgment was not void, as now contended, but only voidable at most, since if void, certiorari would not lie. Sawyer v. Blakely, 2 Ga. App. 159 (58 S. E. 399). If not void, it would necessarily follow that the court was not for any reason without jurisdiction to render the judgment, and, also, that the court was open. But an examination upon the merits likewise shows the contention to be without substantial basis. The summons required the defendant to be and appear at the justice's court on April 27, 1949, at 10 o'clock a.m. The untraversed answer of the justice shows that he was at the appointed time in his accustomed place for holding court, that the parties with their counsel were personally present, and that his announcement as to entering judgment for the plaintiff, made a few minutes after 10 o'clock a.m., was only after a conference between the parties and their announcement that they were unable to reach a settlement as the defendant had indicated might be done upon the arrival of the plaintiff in court. The judgment was not entered, as the plaintiff in error mistakenly asserts in his brief, "while the discussion was still going on." The defendant had filed a demurrer, but had not indicated that he desired or intended to file a defensive answer or plea. The case was triable on that day, April 27, 1949, unless a defense should be interposed at that time, in which event it would stand for trial at the next term of court (subject, however, to continuances as provided by law), except that trial might be had at first term with the consent of the plaintiff. Code, 24-1401, 24-1402, 24-1403. Where no defense is interposed to a suit for a liquidated amount, a default judgment may be entered just as if proof had been made. Georgia, Fla. & Ala. Ry. Co. v. Sheppard, 3 Ga. App. 241 (59 S. E. 717); Ivey v. Payne, 8 Ga. App. 760 (1) (70 S. E. 140); Pape v. Woolford Realty Co., 35 Ga. App. 284 (6) (134 S. E. 174); Cochran v. Carter, 35 Ga. App. 286 (2) (132 S. E. 921); Glennville Investment Co. v. Jordan, 144 Ga. 14 (2-a) (85 S. E. 1049); Code, 110-403. It is true,
as contended by the plaintiff in. error, that the case was not sounded or cried. Neither was the plaintiff expressly invited to plead, but it can not be said that he was without opportunity to do so. It must be remembered that proceedings in a justice court are not attended with the technicality and precision which are requisite in courts of record, the real object, being to obtain substantial justice, and great liberality is indulged in such proceedings. 51 C. J. S. 96, 53. It is very evident from the summons and untraversed answer of the justice that the parties were present at the appointed time and place and for the express purpose of trying that case. If counsel did not understand that the court was open, though informally, he should have become aware of it when the justice announced that he was entering judgment. The defendant was in default, in so far as a plea or answer was concerned, and the action of the justice was authorized. While it is complained that the defendant was not permitted to plead, the answer of the justice shows that no remonstrance was made or any permission sought to plead or answer.
The contention that the defendant was not properly served cannot be considered by this court, inasmuch as no proper attack on the service was made in the trial court and the defendant unreservedly appeared therein.
The proceeding, though informal, was in a justice court with actual jurisdiction, and no reversible error is shown. The judge of the superior court did not err in overruling the petition for certiorari and dismissing it.
WORRILL, J., being disqualified, GARDNER, J., was designated to preside in his stead.
Judgment affirmed. Felton and Gardner, JJ., concur.