
    22593.
    COLUMBUS HEATING AND VENTILATING COMPANY v. UPCHURCH.
    Decided September 30, 1933.
    
      Charles Q. Bruce, for plaintiff.
    
      Dillon, Calhoun & Dillon, Ralph R. Qidllian, for defendant.
   Pee Curiam.

This was a case in the municipal court where it is provided by the act creating that court that no formal entry of default is required on the docket, as is the usual practice in superior courts. This case having been filed to the November term, 1927, and no answer having been filed at that term, the case was in default, and judgment could have been entered any time thereafter before the filing of a plea. It appears, however, that no judgment was entered in November, 1927, but on May 21, 1928, the judge entered a judgment in favor of the plaintiff nunc pro tunc as of November, 1927, and that judgment was entered before any plea was filed. Such was obviously not the proper judgment to render, in that a nunc pro tunc judgment was not applicable to the facts of the case. The case in May, 1928, was still in default, and the proper judgment to have been taken at that time would have been a judgment as of that date. The court erred in overruling the certiorari. The judgment is reversed, with direction that the trial court change the nunc pro tunc judgment, and make it a judgment as of May- 21, 1928. See, in this connection, Pollard v. King, 62 Ga. 103 (4, 5), 106.

Judgment reversed, with direction.

Broyles, C. J., and Guerry, J., concur.

MacIntyre, J.,

dissenting. Conceding, but not deciding, that the court should have rendered a judgment at the November term, 1927, it could not, under the facts in this case, render a nunc pro tune judgment on May 21, 1928, as of November 19, 1927. No judgment having been rendered at the November term, 1927, the court could not supply its non-action by a subsequent judgment nunc pro tunc. Therefore the defendant had the right to file an answer and to have his case tried upon its merits; he having filed his answer a few hours after the rendition of the improper judgment nunc pro tunc, which was rendered without his knowledge or consent.  