Cheeks v. Barnes, 33163
| Decision Date | 08 March 1978 |
| Docket Number | No. 33163,33163 |
| Citation | 241 Ga. 22,243 S.E.2d 242 |
| Parties | Donald E. CHEEKS v. Cecil H. BARNES et al. |
| Court | Georgia Supreme Court |
Nicholson & Nicholson, Chris D. Nicholson, Augusta, for appellant.
Jay M. Sawilowsky, Augusta, for appellees.
Plaintiffs Barnes and Blackmon brought suit in equity against Cheeks alleging that the three of them were former partners and that there had been fraud and mutual mistake in the partnership dissolution settlement. The plaintiffs sought an accounting, and an injunction against defendant's pursuing other litigation in another court.
On June 10, 1977, the complaint was filed, and a rule nisi returnable July 11, 1977, was obtained. The rule nisi specified that evidence at the hearing would be by affidavit, deposition, answer to interrogatory or response to request for admission only. The complaint and rule nisi were served on the defendant on June 13, 1977. On July 8, 1977, the judge who had issued the rule nisi disqualified himself and on that day the hearing was rescheduled for August 2, 1977. Defendant's counsel was notified of the postponement. The case became in default when no answer was filed by July 13, 1977.
At the hearing on August 2, 1977, plaintiffs orally moved for entry of default judgment and defendant orally opposed the same. On August 5, 1977, plaintiffs filed a motion for default judgment, returnable August 26, 1977. On August 26, 1977, after paying costs, defendant filed a verified motion to open default, with proposed answer attached.
Defendant's motion to open default was overruled and default judgment (based upon defendant's default and his failure to answer requests for admissions) was entered on September 16, 1977. Defendant appeals, enumerating as error that the trial court erred in granting default judgment in favor of plaintiffs.
The motion to open default simply urges that a proper case has been made for the default to be opened. See Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 219 S.E.2d 115 (1975); Code Ann. § 81A-155(b). There are no transcripts of any hearings and no affidavits, etc., of record setting forth facts. Defendant recognizes that this case is in the second phase of default. Ga.Prac. & Proc., § 8.8 (4th Ed.); Haire v. Cook, 237 Ga. 639, 641, 229 S.E.2d 436 (1976).
By brief, defendant argues that the entry of the rule nisi by a judge who later disqualified himself was a nullity. Even if that order were a nullity, this case went into default when...
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