
    Fleetwood et al. v. Equitable Mortgage Company.
    Submitted June 16,
    Decided July 28, 1899.
    Petition to set aside judgment. Before Judge Henry. Floyd superior court. October 17, 1898.
    
      jHenry Walker, for plaintiffs in error.
    
      Payne & Tye, Dean & Dean, and J. A. Noyes, contra.
   Little, J.

1. When a case, brought after the enactment of the practice act of 1895, was at the appearance term marked in default, the defendant could not at the trial term invoke the exercise of the court’s discretion in opening the default, without showing that the failure toplead at the proper time was due to “providential cause” or “excusable neglect.”

2. If at the trial term of such a case the judge upon being informed by the defendant’s counsel that he intended to file a motion to open the default remarked, “You can file your motion for this purpose, and you can notify plaintiff’s counsel, and in the meantime no action will be had without advising you, ” but through inadvertence permitted the plaintiff ’ s counsel to enter a final judgment before the filing of the motion to open the default, then that motion, if filed within a reasonable time, should have been dealt with upon its merits as if duly made before the entry of the final judgment.

S. Thus dealing with the motion to open the default in the present case, it was properly refused; for it was not made in areasonable time, and, moreover, did not show that the failure to plead was due either to providential cause or excusable neglect. It would not have been good had it been filed before final judgment, and was not good afterwards.

Judgment affirmed.

All the Justices concurring.  