Blanch v. King

• Court: Georgia Supreme Court
• Citation: Blanch v. King, 202 Ga. 779, 44 S.E.2d 779 (Ga. 1947)
• Decision Date: 17 October 1947
• Docket Number: 15979.
• Parties: BLANCH v. KING et al.

44 S.E.2d 779

202 Ga. 779

BLANCH v. KING et al.

No. 15979.

Supreme Court of Georgia

October 17, 1947

Syllabus by the Court.

The petition, seeking to set aside a default judgment obtained during the illness of the petitioner's attorney and his inability to attend court, alleging that the petitioner had a meritorious defense, but not showing the facts from which the merits of the alleged defense could be judged, or that counsel could not by himself or through others have communicated with the court and sought a postponement of the case, and that the petitioner, who failed to keep up with the progress of the case, was for any sufficient reason prevented from doing so and notifying the court of the illness of counsel, did not set forth a cause of action, and the court erred in overruling the general demurrer.

Chester B. King filed, on May 8, 1947, in the superior court of Fulton County, Georgia, a petition against I. A. Blanch Jacobs Pharmacy Company, Inc., and Hewitt W. Chambers as clerk of the civil court of Fulton County, alleging the following: On December 20, 1946, the defendant Blanch filed in the civil court of Fulton County suit No. 133,670 against the petitioner, seeking to recover $175 and court costs. On February 5, 1947, an order was taken making the suit returnable to the March term, for the reason that the defendant had not been served in time for the case to be tried at either the January or the February term of court. On February 8, 1947, the defendant in the said suit was served with a copy of the suit by the deputy sheriff of Fulton County, Georgia; and the petitioner herein, within a day or two thereafter, on either February 10 or February 11, 1947 delivered the said papers to his attorney, H. W. McLarty, and requested him to file immediately a defense for him, which the said attorney promised to do and also promised to attend court and notify the petitioner herein when the case was ready for trial. Shortly thereafter the said attorney, H. W. McLarty, became suddenly and seriously ill which illness continued until April 6, 1947, on which date the said attorney died. The petitioner has a good and valid defense to the action brought by the said Blanch against him and he explained his defense to his attorney, who promised and agreed to represent him and to file an answer in the case and notify him in advance of the trial thereof. The petitioner herein relied upon his attorney's ability, and had no knowledge of the fact that no answer had been filed or that his attorney was ill and unable to file an answer. He had no knowledge that the case was in default or that it was on the calendar to be tried until after a default judgment had been entered against him and until after a summons of garnishment was sued out and served upon his employer, the defendant Jacobs Pharmacy Company, Inc. The said garnishment was filed by the defendant Blanch herein in the civil court of Fulton County on April 22, 1947, being number 133,946, and a summons of garnishment was issued thereon and served upon the petitioner's employer, Jacobs Pharmacy Company, Inc. The judgment upon which the garnishment was based was obtained through accident and mistake, and should be set aside by a court of equity. Until the said judgment is set aside the garnishment proceeding will continue, and the petitioner has no adequate remedy at law for the reason that the term in which the judgment was obtained has expired, and for the further reason that there are no defects upon the face of the record on which the petitioner can attack the judgment. While the said garnishment continues the petitioner's earnings will be held up and he will likely lose his present employment and will thus sustain irreparable damage and injury. The said two suits are between the same parties hereto and are based on the same cause of action, and should be consolidated with this action in order that the entire matter may be disposed of expeditiously.

The prayers were: (a) That each of the defendants be required to show cause why the said judgment should not be set aside and the prayers of the petition be granted; (b) the defendant Blanch be enjoined from prosecuting the garnishment proceeding further and from attempting to enforce the said judgment against the petitioner in any manner whatsoever; (c) the defendant Chambers be temporarily restrained and permanently enjoined from marking the said garnishment suit, No. 135,946 in the civil court of Fulton County, in default, or from entering up a judgment against the garnishee named therein; (d) the defendant, Jacobs Pharmacy Company, Inc., be temporarily restrained and permanently enjoined from withholding any sum whatsoever from the petitioner's salary by reason of the said garnishment proceeding or from filing an answer in the said case; (e) such other and further relief be granted as to the court may seem equitable and just; (f) the judgment of March 4, 1947, be vacated and set aside and declared to be of no force and effect; (g) the garnishment proceeding be dismissed; (h) and process issue.

The defendant, I. A. Blanch, filed a demurrer to the petition on the following grounds: 1. The facts stated do not constitute a cause of action. 2. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, has not taken care to ascertain if an answer had been filed in the case. 3. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, had not communicated with his attorney in regard to the case. 4. The defendant demurs specially on the ground that the petition does not disclose why the petitioner, in the exercise of due diligence, failed to communicate with his attorney within a reasonable length of time as to whether he needed to sign or verify the answer. 5. The defendant demurs specially on the ground that the petition does not disclose that the said attorney had been unable to notify the court or the petitioner of his illness or that he could not have so notified them by his law clerk or secretary for the purpose of avoiding a default in the said case. 6. The defendant demurs specially on the ground that the petition does not disclose that the said attorney did not have in his employ an attorney at law or law clerk who reasonably could have filed an answer or made application for an extension of time to file an answer. 7. The defendant demurs specially on the ground that the petition does not disclose when the petitioner learned of the death of the said attorney, and that he was not negligent in not immeadiately looking up the status of the case and filing 'said petition thereupon promptly.' 8. The defendant demurs specially on the ground that it appears from the petition that the petitioner learned of the judgment on or about April 22, 1947, and filed the petition after the expiration of the said term of court. 9. The defendant demurs specially on the ground that the petition fails to set out all the facts on which the defense is based, so that the court may determine...