
    4709.
    Ashburn Auto Company v. Black.
    Decided June 10, 1913.
    Complaint; from city court of Ashburn—Judge Tipton. January 20, 1913.
    
      John B. Hutcheson, A. 8. Bussey, for plaintiff in error.
    
      J. A. Comer, contra.
   Hill, C. J.

1. The motion to dismiss the writ of error is without merit.

2. Where the statute allows the defendant in an action at law to appear and answer on or before the first day of the term to which the process is returnable, and during that day he does appear and file with the clerk his plea or answer, he can not be regarded as in default. In the present case the entry of default was prematurely made and did not deprive defendant of the right to insist upon the plea and answer which he had filed in terms of the statute; and it was not necessary to move the court to open the default, though in such a case it is the better practice to do so. Bush v. Butler, 8 Ga. App. 345 (69 S. E. 26).

Judgment reversed.  