
    Michelson v. Cunningham, for use, etc.
    1. The practice prevailing in a given superior court to assign for trial on the first day of each term all cases in which defenses had been filed and issues made, had no application to a case in which, up to and including the first day of the trial term thereof, no defense had in fact been filed.
    2. Where, on a given day during the trial term of a rule nisi to foreclose a mortgage on realty, the rule was made absolute, no defense having been filed, and the defendant allowed about six weeks to elapse before filing any plea, all the juries having in the meantime been discharged for the term, there was no error in overruling a motion of the defendant to set aside the rule absolute for the purpose of having a trial upon the merits of the case; and this is true even though the pica set forth a good defense. If the judge had any discretion in the matter, it was certainly not abused under the facts of this case.
    June 10, 1895.
    Justice Atkinson being disqualified, Judge Hart, of the Ocmulgee circuit, was designated to preside.
    Motion to set aside judgment. Before Judge Sweat. Glynn superior court. May term, 1894.
    A rule absolute to foreclose a mortgage, in behalf of Cunningham suing for the use of the Brunswick State Bank against Zella B. Michelson and Morris Michelson, was taken. At the same term Zella B. Michelson moved to set aside the judgment absolute, upon the following grounds: (1) Itwas entered up before the expiration ofthe term next after the rule nisi was granted, and hence was premature, inasmuch as the code (§8964) allows the defendant to answer the rule nisi at any time during the term to which it is made returnable. (2) Said cause was not assigned in its regular order for healing, according to the practice of assigning causes in said court for trial; and hence defendant was not apprised of the calling of the cause for trial, and knew nothing of the judgment absolute against her until some days after its rendition. Nelying upon such practice of the court, she felt secured in her rights to make answer in the cause at any time during the May term, to which the rule nisi was made returnable,before the time assigned for said trial of cause. (3) She has made and filed her answer setting up good and valid reasons why said judgment should not be made absolute against her, reference to which is made.
    The motion to set aside was heard upon the following agreed state of facts: It has been and now is the practice of this court, which has prevailed for a number of years, to assign generally, upon the first day of each term of the court, all cases that are upon the trial docket by reason of defenses filed and issues made at each term of the court ready for trial, and all litigants and witnesses in such litigated cases need attend court only upon those days in which the causes they are interested in are upon the calendar for that day. This assignment of litigated causes is published for the convenience of parties and witnesses, and they must be governed by the calendar, unless otherwise notified. No cases, heretofore, for the foreclosure of mortgages have ever been assigned, but judgment absolute taken on the first day or any day during the term that plaintiff’s counsel presented rule absolute; and this cause was not assigned, and no notice was given to defendant Zella 13. Michelson, of the time that said cause would be heard. The suit had been properly filed and rule nisi granted according to law and served in time, calling upon the defendants to pay the money into court 'upon the first day of the May term, 1894. The judgment absolute was granted on May 29th, during said term. The defense upon the part of Zella B. Miclielson was filed on July 10, 1894, during the same term, before the motion to set aside was filed, and after the dischai’ge of both the grand and petit juries for the term; and she was not aware of the granting of the rule absolute until just prior to the filing of said defense.
    The court overruled the motion, and movant excepted.
    Atkinson & Dunwody, for plaintiff in error.
    Goodyear & Kay, contra.
    
   Hart, Judge.

The official report of the facts of this case is sufficiently full. The plaintiff in error insists that the court erred in overruling her motion to set aside the judgment of foreclosure, upon two grounds. 1st: Because the judgment absolute was prematurely granted. 2d: Because, under the practice of long standing in Glynn superior court*the case should have been first “assigned,” before final judgment. The determination of the first ground depends upon the construction to be given sections 3962 and 3964 of the code. The first provides, that upon the filing of a petition to foreclose a mortgage on realty, “the court shall grant a rule, directing the principal, interest and costs to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted.” The “rule msi” requires the defendant to pay into court the demand of the plaintiff on or before the first day of the next term, — a copy of which rule is duly served upon the defendant. The defendant is thus put upon notice that unless he shows a valid reason why the demand of the plaintiff should not be allowed, the court will enter up judgment in conformity with the petition, and he is, we repeat, called upon to pay the money into court, “on or before the first day of the next succeeding term,” The case is very plain thus far, and whatever confusion may arise grows out of section 3964. After providing for service, it declares that “the mortgagor, or his special agent or attorney, may appear at the term of the court at which the, money is directed to be paid, and file his objections,” etc.' It was insisted by tbe able counsel for the plaintiff’ in error, that the mortgagor was entitled to file his defense at any time during tbe second term, and that therefore he was allowed the whole of that term within which to do so. The rule requires him to pay by a pai’ticular day; but it was argued that the statute providing for his defense gives him any day during the term, to give his reasons for not paying. I do not think, by a fair construction, the statute means that.The majority of this court ai’e, however, content to say, that in this particular case, surrounded by its own peculiar facts, there was no abuse of discretion by the judge below in refusing to open the judgment making the rule absolute. It may be said (I trust with becoming modesty), that I am prepared to go further, thus manifesting a courage born, perhaps, of inexperience; and to hold that every mortgagor, who has been regulai’ly served, and who permits, through his laches or inattention, a judgment absolute in default to be entered up against him, after the first day of the trial term upon a regular call of the docket, is forever thereafter bound by that judgment. He has had his day in court, at least he has had the opportunity to be heard, and has chosen to disregard it. There are of course many judgments by default which the court in the exercise of ■ a sound discretion may set aside, but the reasons for so doing are generally reckoned to be of a providential nature, or founded upon excuses standing on a similar footing. Judgment by default in consequence of, negligence carries tbe case beyond tbe discretion of tbe judge. My insistence is that this case did not fall within that class of cases in which it was contemplated that the judge should exercise any discretion. I think that section 3964 which says, “the mortgagor, or his special agent or attorney, may appear at the term” and file his defense, at most only means he may file his defense at the term when his case is regularly called for trial, that is, at any time during the term, before or when his case is called for trial, but not afterwards. If this is not the law, then a mortgagor could sit in the court-house, hear his ease called, by his silence permit judgment to be entered up against him, wait until the juries were discharged for the term, and just before the judge ordered an adjournment pull from his pocket an answer, or plea, setting up a defense, which may be without merit, and thus work a six months continuance, to the great discomfiture of the plaintiff, his creditor. The better practice, where mortgages are to be resisted, is to file the defense on the first day of the term when allowable, or at least when the case is sounded for trial on the regular call of the docket. To wait longer is hazardous, and perchance may be fatal.

As to the second contention of the plaintiff’in eri’or, viz: that the judgment should have been set aside because this ease had not first been assigned for trial upon a day certain, we think that too is without merit. From the bill of exceptions it does not appear that cases in which no issue had been formed had ever been “assigned” in Glynn superior court. Only litigated cases were so treated. This case was in default the moment when called and no defense filed. It would not, therefore, fall within the rule contended for by plaintiff' in error. For these reasons, we do not think the court below erred in refusing to open the default, or to set the plaintiff’s judgment aside. Judgment affirmed.  