Stephens vs. The Gate City Gas-Light Company

Supreme Court of Georgia1888-04-16

81 Ga. 150

Summary · law.co

Holding. The court affirmed the judgment, holding that personal service combined with the defendant's failure to file a plea or answer at the appearance term constituted a default, which by statute operates as an admission of the account's correctness, permitting the trial court to direct a verdict for the plaintiff without requiring proof of personal liability separate from the defendant's role as administrator.

The Gate City Gas-Light Company sued John Stephens to recover an unpaid gas account totaling $219.15 plus interest. Stephens was personally served with the complaint but filed no plea or answer at the appearance term. When the case proceeded to trial, Stephens's counsel moved to nonsuit and to exclude the plaintiff's evidence on the grounds that personal liability was claimed while only administrative liability was proven. The trial court rejected both motions, instructed the jury that the facts were undisputed and liability was a matter of law, and directed a verdict for the plaintiff.

Stephens appealed, arguing the court erred in refusing the nonsuit motion, refusing to exclude evidence, and in directing the jury verdict. The court rejected these arguments, finding that Stephens's failure to file a plea or answer after personal service constituted a default under state statute. Under that statute, silence operates as an admission of the account's correctness and that it remains unpaid, making the account proved as a matter of law. Because Stephens made no defense, there was nothing for counsel to argue to the jury, and the trial court properly instructed the jury to return a verdict for the plaintiff.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Effect of default (failure to plead) after personal service on open account claims
Whether statutory default constitutes admission of account correctness
Propriety of directed verdict when no defense is made
Distinction between personal and representative liability in gas utility accounts

Procedural posture

Stephens was sued on an open account for unpaid gas charges; after personal service and his failure to file a plea or answer, the trial court directed a verdict for the plaintiff, judgment was entered, and Stephens appealed the denial of his motion for a new trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Justice.

The Gate City Gas-Light Co. brought their action of complaint against John Stephens, wherein it alleged that Stephens xvas indebted to it in the sum of $219.15, besides interest, on account of gas consumed by him, which account he refused to pay. A copy of the complaint was served personally upon the defendant by the sheriff. The record discloses that no plea Avas filed by the defendant; nor is it sIioavii that any answer Avas made by him when the case was called, at the appearance term thereof. Evidence was introduced by the plaintiff to prove the correctness of the account, and to show that Stephens had admitted that the account Avas correct; and it was admitted by the defendant’s counsel that the defendant was administrator on the estate of Edward Mercer, and that as such he undertook to carry on the business of his intestate for the current year, and that the plaintiff furnished gas to him which was used in carrying on that business. The defendant’s counsel appeared at the trial, and when the plaintiff closed its evidence, he moved to nonsuit the case, on the ground that the evidence did not make out the plaintiff’s case. The court overruled the motion, and the defendant then moved to rule out the plaintiff’s evidence, on the ground that a personal liability was claimed in the declaration, while only liability of the defendant as administrator was proved; which motion the court refused. The court then charged the jury, and under his charge the jury returned a verdict for the plaintiff. The defendant moved for a new trial; which motion was overruled by the court, and he excepted. The grounds of his motion are, in substance, (1) that the court refused the nonsuit; (2) that the court refused to rule out the evidence of the plaintiff; (S) because of the charge of the court; a portion of which was as follows :

“ It is in proof, and I charge you that the facts of this case are wholly undisputed, that the gas was so furnished as set out in the account sued on ; and that the items of this account are correct and unpaid..... There being no dispute as to the facts of this case, and the question of liability being one of lav/, the court directs you to return a verdict for the plaintiff for the amount of the account sued on, with interest thereon, from the date of the last item, at the rate of seven per cent, per annum.” The exception to this charge is, that it stated the result of the evidence and directed a certain finding by the jury.

Under the facts of this case, we see no error in the charge complained of. As has been shown in the statement of facts, a copy of this declaration and account was served personally on defendant. No plea was filed and no answer made at the appearance term, and no counsel’s name was marked for the defendant, so far as the record discloses. The code, §3157, declares that in suits on open accounts, “ where the writ or process has been served personally . . on the defendant, and there is no defence made by the party sued, either in person or by attorney, at the time the case is submitted for trial, the case shall be considered in default, and the plaintiff shall be permitted to take judgment (which, since the constitution of 1877, is construed to moan a verdict,) as if each and every item wore proved by testimony.” This is the same as if the defendant had come into court and acknowledged the correctness of the account and that it was unpaid. If the defendant had done so in this case, the court would have had a right to instruct the jury to retuni a verdict for the plaintiff, and that is what. the court did, in substance, in the charge complained of.

The defendant having been personally served, and having made no defence, and the statute construing his silence as an admission of the correctness of the account, there was nothing for counsel to argue to the jury; and the court did not err in refusing to allow him to address the jury. This case differs from that of Durden vs. Carhart & Brother, 41 Ga. 76. In that case, while no plea was filed by the defendant, there was no personal service, and the pi’oof of the account was not satisfactory; and this court held that, although the defendant had filed no pica, he had a right to object to the rendition of a verdict against him for the want of sufficient evidence, and that he had a right to argue upon the evidence to the jury.

If we are right in the foregoing remarks, of course the court did not err in refusing to grant the nonsuit, or in not ruling out the plaintiffs evidence; and the judgment is affirmed.