Axelroad v. Preston, No. 29141
| Decision Date | 24 September 1974 |
| Docket Number | No. 29141 |
| Citation | 232 Ga. 836,209 S.E.2d 178 |
| Parties | Saul P. AXELROAD v. I. N. PRESTON, Jr. |
| Court | Georgia Supreme Court |
Gershon, Ruden, Pindar & Olim, Barry L. Katz, Atlanta, for appellant.
Barber & Hooper, William H. Barber, Atlanta, for appellee.
Syllabus Opinion by the Court
The sole question presented for decision in this certified appeal is whether the trial court abused its discretion in granting defendant's motion to open the default in this equity case prior to final judgment.
The facts upon which the trial court exercised its statutory discretion and opened the default are these: Plaintiff's complaint was served upon defendant on June 22, 1973, requiring an answer within thirty days thereafter under Code Ann. § 81A-112(a). Defendant's counsel had been stricken with acute cardiac infection on June 5, 1973, which required him to be hospitalized until June 11, 1973, when he was released to home care. Defendant's counsel was directed by his attending physician, at the time of his release, to return to the hospital as soon as possible thereafter for open heart surgery to replace an aortic artery valve. Defendant's counsel re-entered the hospital for this surgery on September 5, 1973, and was released on September 17, 1973, to his home for recuperation. Between June 11, 1973, and September 5, 1973, defendant's counsel was under strict orders from his physician to make periodic visits to the physician's office and to reduce his work load in preparation for the scheduled surgery. After approximately five weeks of recuperation at his home from the surgery, defendant's counsel returned to work and discovered that he had not filed defensive pleadings in the case. A written motion to open the default was prepared and filed and defensive pleadings were tendered for filing at the same time. After a hearing on the motion to open the default, the trial court entered an order opening the default and allowed the filing of the defensive pleadings.
Defendant's counsel argues that beginning with his initial hospitalization for acute cardiac infection until he was able to return to work following recuperation from surgery he was under severe pressure due to his illness and that he had inadvertently failed to file an answer to the plaintiff's complaint within the time prescribed by law. Plaintiff's counsel argues that defendant has not shown providential cause or excusable neglect preventing the filing of a timely defense and that the trial court abused its discretion in opening the default.
The record before us shows that this is a case in which the plaintiff contends the defendant was maliciously trespassing upon plaintiff's property and plaintiff seeks to enjoin defendant from committing the alleged acts of trespass. The trial court, on plaintiff's motion, entered a temporary restraining order against the defendant and thereafter continued the restraining order in force until further order of the court but there has been no final trial or hearing in the case. Held:
1. 'Paragraph (b) of Section 55 of the Civil Practice Act (Ga.L.1966, pp. 609, 659; Code Ann. § 81A-155(d)) provides: ...
To continue reading
Request your trial
-
Strader v. Palladian Enters., LLC
...Co., 252 Ga. 400, 402, 314 S.E.2d 199 (1984); Copeland v. Carter, 247 Ga. 542, 543(1), 277 S.E.2d 500 (1981); Axelroad v. Preston, 232 Ga. 836, 837(1), (2), 209 S.E.2d 178 (1974). Finally, Strader's reliance on In the Matter of Turk, 267 Ga. 30, 31(1), 471 S.E.2d 842 (1996), is misplaced fo......
-
Bowen v. Savoy
..."the reaching out to take in every conceivable case where injustice might result if the default were not opened," Axelroad v. Preston , 232 Ga. 836, 837, 209 S.E.2d 178 (1974). In BellSouth Telecomms. v. Future Comms. , 293 Ga. App. 247, 250 (2), 666 S.E.2d 699 (2008), however, the Court of......
-
Cotton v. Federal Land Bank of Columbia
...pp. 609, 659; 1967, pp. 226, 238) to 'determine that a proper case has been made for the default to be opened.' Axelroad v. Preston, 232 Ga. 836, 209 S.E.2d 178; Houston v. Lowes of Savannah, 235 Ga. 201, 219 S.E.2d Accordingly, where, as here, the answer had already been timely filed, "the......
-
ABA 241 PEACHTREE v. BROOKEN & McGLOTHEN
...omitted.) Legacy Hills Residential Assn. v. Colonial Bank, 255 Ga.App. 144, 145, 564 S.E.2d 550 (2002). See Axelroad v. Preston, 232 Ga. 836, 837(1), 209 S.E.2d 178 (1974); Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga.App. 562, 563, 434 S.E.2d 124 (1993). "The sole fun......