The plaintiff in error, Currie, brought suit against the defendants in error, the Deavers, to the November term, 1905, of the city court of Brunswick. At the appearance term the defendants filed a plea, but the same was not signed by them or by their counsel. At the next term of the court, which was held in February, 1906, upon the case being called in its regular order for trial, counsel representing the plaintiff moved the court to strike the plea and answer, because the same -was not subscribed by party or counsel, and to direct a verdict in favor of the plaintiff. The court ruled that this unsigned plea amounted to no plea, and that the case was in default. The defendants’ counsel thereupon moved to amend the plea by signing the same. The court held that the plea coidd not be amended but could be signed and offered as a new plea. The defendants’ counsel then made a motion to open the default in said case by signing the plea and offering it as an original plea as of that date. The court thereupon passed the following order: “It appearing to the court that through oversight the counsel’s name was not signed to the plea, it is, upon motion of counsel for defendants, ordered by the court that said d.efault be allowed to be opened, the court exercising its discretion, on payment of all costs accrued to this time, and that this plea
1. Ordinarily the failure of a party or his counsel to subscribe his pleadings, duly filed, is such a defect as may be waived, and therefore may be cured by amendment. 20 Enc, PI. & Pr. 1002; Myer v. Construction Co., 100 U. S. 471. The case of Tatum v. Allison, 31 Ga. 337, though not directly in point, is strongly persuasive to the same intent. It is true that the direction in the Civil Code, §5052, in. relation to the answer of the defendant, that it shall be “in writing, signed by himself or counsel,” is very similar in language to the requirement in section 5527, that bills of exceptions “shall be signed by the party or his attorney or solicitor,” and it is contended that this parallelism makes controlling as authority, in this case, the line of decisions by our Supreme Court holding that a bill of exceptions, which is not signed by the party or his attorney, is fatally defective and that it can not be amended by adding the omitted signature. But we do not think these decisions are applicable. Under our system of pleading and
2. Even if. the unsigned plea were to be treated as no plea at all, still, under the provisions of the Civil Code, §5070, “At any time within thirty days after the entry of ‘default/ the defendant, upon payment of all costs which have accrued, shall be allowed to open the default and file his defense by demurrer, plea, or answer.” While the judge is.required to mark each undefended case “in default” at the first term, still, if he neglects to do this until the trial term, the time within which the defendant may answer is accordingly prolonged. Gordon v. Hudson, 120 Ga. 698; Davis v. Railway Co., 107 Ga. 420; Green v. Hambrick, 118 Ga. 569 (5). The judge can not diminish this right of the defendant by dating back the entry of default, so as to cause it to appear as if made at the previous term, if as a matter of fact the default was not judicially ascertained or declared at such previous term. It is unnecessary for us to decide whether or not the judge has the power by an order nunc pro tune to enter as of a previous term a default actu.ally judicially ascertained and declared at such previous term, but not formally entered. In this case the judge did not ascertain or declare the default until the February term, 1906. So that, in finally allowing the defendants’ plea, the judge, although his method, of arriving at this result may have been irregular in some respects, committed no error of which the plaintiff in error in the main bill of exceptions can complain.
3. As authority for the dispósition made of the cross-bill, see McElveen v. Railway Co., 109 Ga. 255.
On the main bill of exceptions the judgment is affirmed. The cross-bill of exceptions is dismissed.