American Liberty Ins. Co. v. Sanders
| Decision Date | 16 May 1969 |
| Docket Number | No. 2,No. 44466,44466,2 |
| Citation | 170 S.E.2d 249,120 Ga.App. 202 |
| Parties | AMERICAN LIBERTY INSURANCE COMPANY v. Maggie SANDERS |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The motion to dismiss the appeal is without merit.
2. (a) Where a motion to open a default alleges that 'movant shows that it
has a good and meritorious defense to said action which is filed herewith,' and the defense, contained in the answer, is tendered and filed along with the motion, the defense is effectively incorporated as a part of the motion.
(b) Alleged defects in the verification of a motion to open a default must be objected to in the trial court and a ruling invoked thereon before appellant can invoke a ruling in the appellate court as to the alleged defect.
3. A statute which confers upon the trial judge discretion to decide a particular question before him also imposes upon him a correlative duty to exercise such discretion when the occasion arises; and where the judge has a legal discretion to exercise but passes judgment on the question, affirmatively showing from the language of the ruling that he failed to exercise any discretion whatever, the judgment not being demanded as a matter of law, a reversal will result with direction to rehear the matter and pass upon it in the exercise of his sound legal discretion.
This is a companion case to American Liberty Insurance Co. v. Sanders, 120 Ga.App. 1, 169 S.E.2d 342. Mrs. Sanders seeks recovery for personal injuries allegedly received as a result of being struck by an automobile operated by an uninsured motorist. In the companion case of her husband we held that there was no uninsured motorist coverage and Mr. Sanders could therefore not recover in his suit against the insurance company.
The instant case went into default, and 52 days after the complaint was filed defendant presented a motion to the trial court, but prior to final judgment in the action, seeking to open the default. The motion alleged that on December 7, 1968, two complaints were filed against movant, one being the husband's case above referred to, and the other being the instant case; that on the same date copies of the complaints were served upon 5/8 Smith, an insurance broker through whom a policy of insurance had been issued to Z. B. Sanders; that 5/8 Smith was under the misapprehension that there was one suit only and that one copy was for use of his office and one copy for the use of the defendant; that accordingly 5/8 Smith forwarded only one of the complaints, being the husband's suit, to movant; that upon receipt of the complaint movant referred it to its attorney and defensive pleadings were duly filed within the time required by law; that on January 23, 1969, more than 45 days after service, movant, through its attorney, learned for the first time that the instant case had been filed; that the case was in default through no fault of movant's but solely through the fault of 5/8 Smith who failed to forward notice of the complaint; that movant has a good and meritorious defense to said action 'which is filed herewith,' stands ready to plead instanter, is ready to proceed with trial, and has paid the accrued costs. The prayer was for an order opening the default and allowing movant's answer to be filed upon such terms as the court may direct. The motion was verified by movant's counsel, and along with the motion its defensive pleadings were filed in which it absolutely denied liability because of lack of coverage, a defense found meritorious in the companion case. Also in the answer movant admitted that it was a nonresident corporation duly authorized to do business in Georgia but denied that it had an agency and place of business in the county operated by 5/8 Smith upon whom service could be perfected. Plaintiff moved to dismiss the motion to open the default.
At the hearing on the motion to open the default 5/8 Smith testified substantially to the facts as alleged in the motion, and he further testified that he was not a duly authorized agent for movant but was only a broker; that he only filled out applications for insurance and forwarded them to the company's agent in Atlanta for handling; that he was not authorized to handle the company's business in connection with claims; and that suits had never been served upon him in the twenty years he had been in business.
A colloquy took place between the court and counsel as follows:
In its order the court did not pass upon the motion to dismiss the motion to open default, but provided as follows:
Movant procured a certificate from the trial judge providing that 'I hereby certify that the order of this court dated February 17, 1969, denying the defendant's motion to open the default on the grounds that this court does not have the right to exercise a discretion, is of such importance to the case that immediate review should be had.' The order denying the motion to open the default is thus before us for review.
Zorn & Royal, William A. Zorn, Jesup, for appellant.
Jack J. Helms, Homerville, for appellee.
1. The motion to dismiss the appeal on the ground that the notice of appeal did not designate the final judgment subsequently entered is without merit. The issues involved in the order appealed from are not moot, nor is the final judgment the law of the case, inasmuch as the motion to open the default was made prior to final judgment, and a certificate of immediate review was obtained for this order. If there was error in denying the motion, all further proceedings were nugatory, for in that event the defendant may have been wrongfully denied the opportunity of presenting what appears to have been a meritorious defense.
2. (a) Plaintiff contends that although the trial court proceeded to hear the motion to open the default on its merits, the motion was insufficient as a matter of law to meet the requirements of CPA § 55(b) (Code Ann. § 81A-155(b)). It is urged that the motion contained no facts to sustain the conclusion that movant had a 'meritorious defense which is filed herewith' and that the answer filed in connection with the motion was not verified nor made a part of the motion.
CPA § 55(b) (Code Ann. § 81A-155(b)) (same as old Code § 110-404) provides that 'In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.' This Code section, 'providing for the opening of defaults, should be given a liberal construction, in the promotion of justice and the establishment of truth * * *' Tedcastle & Co. v. J. T. Brewer & Co., 19 Ga.App. 650(1), 91 S.E. 1051, and citations. See also Strickland v. Galloway, 111 Ga.App. 683, 685, 143 S.E.2d 3, and citations.
Under the italicized portion, it has been held that facts, and not merely conclusions, must be stated. Georgia Highway Express Co. v. Do-All Chemical Co., 118 Ga.App. 736, 165 S.E.2d 429. This is so that the court can determine whether, if the default were opened and movant were allowed to plead and try the case, the result might be in his favor, or that it was at least doubtful that plaintiff should recover (cf. Phillips v. Taber, 83 Ga. 565, 572, 10 S.E. 270; Blanch v. King, 202 Ga. 779, 782, 44 S.E.2d 779); and the rule applies where the matter setting forth the defense 'was (not) attached to or in any way made a part of the motion * * *, or was (not) even by words remotely referred to, and an effort thus made to incorporate it in the motion to vacate, as an exhibit or component part thereof.' Pryor v. American Trust & Banking Co., 15 Ga.App. 822, 825, 84 S.E. 312.
But in the instant case it was alleged in the motion that 'movant shows that it has a good and meritorious defense to said action which is filed herewith,' and the defense, contained in the answer, was tendered and filed along with the motion as an exhibit or part thereof. CPA § 10(c) (Code Ann. § 81A-110(c)).
In these circumstances there is no reason wny the court cannot determine whether opening the default might result in defendant's favor as well as if the recitals of the defense were set out in the motion itself. To require these to be repeated in full in the...
To continue reading
Request your trial
-
Ellerbee v. Interstate Contract Carrier Corp.
...328, 329(1), 329 S.E.2d 545 (1985); Cohutta Mills, supra 179 Ga.App. at 816(1)(a), 348 S.E.2d 91; American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 206(2)(a), 170 S.E.2d 249 (1969); rev'd on the ground that there was no reasonable excuse for the failure to file the answer, 225 Ga. 796,......
-
Insurance Co. of North America v. Dimaio, 44257
...he is confronted with a motion or other situation involving an exercise of discretion. See cases cited in American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 170 S.E.2d 249. I agree, too, that the failure or refusal of such an officer to rule on a matter properly presented for the invoki......
-
Keller Industries, Inc. v. Summers Roofing Co., Inc.
...Green, 282 U.S. 531, 541, 51 SC 243 , 75 LE 520). And see Miller v. Wallace, 76 Ga. 479, 484 (2 ASR 48)." American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 210, 170 S.E.2d 249, rev'd on other grounds, Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. Here the trial cou......
-
Sheet Metal Workers Intern. Ass'n v. Carter
...is within the discretion of the trial court. Although the court must exercise whatever discretion it has (American Liberty Ins. Co. v. Sanders, 120 Ga.App. 202, 170 S.E.2d 249), where the record shows the court has considered the motion and has exercised its discretion in the matter, this c......