Clements v. United Equity Corp.
| Decision Date | 16 March 1972 |
| Docket Number | No. 3,No. 46780,46780,3 |
| Citation | 188 S.E.2d 923,125 Ga.App. 711 |
| Parties | William H. CLEMENTS v. UNITED EQUITY CORPORATION et al |
| Court | Georgia Court of Appeals |
Travis, Tarver & Furlong, Thomas A. Travis, Jr., Atlanta, for appellant.
Bell, Cory & Desiderio, Ruby Carpio Bell, Atlanta, for appellees.
Syllabus Opinion by the Court
Plaintiff appeals from an order opening a default and allowing the defendant to file defensive pleadings. The court certified the order for immediate review.
Under Georgia Code Ann. § 81A-155(b), any time before final judgment the court in its discretion may open a default 'where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened.' Where, as here, the defendant has complied with all the conditions (payment of costs, offer to plead a meritorious defense instanter and to announce ready for trial) the court has wide discretion with which this court will not interfere unless manifestly abused.
This principle is not only embodied in the statute, but has been a matter of policy in this state for many years. Bass v. Doughty, 5 Ga.App. 458, 460, 63 S.E. 516, 517. See also Butler & Co. v. Strickland-Tillman Hardware Co., 15 Ga.App. 193, 82 S.E. 815; Strickland v. Galloway, 111 Ga.App. 683, 143 S.E.2d 3.
Cases which appear to deny this broad discretion usually involve the setting aside of a judgment, albeit default, which is governed by other policy considerations and other statutes. Our law distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents final judicial action and the vesting of rights. See Cravey v. Citizens & Southern National Bank, 110 Ga.App. 284, 138 S.E.2d 321; 6 Moore's Federal Practice § 55.10(1). There is also a difference between the tests for opening a default under the first two grounds of the statute (providential cause and excusable neglect) and that of the ground here. The former grounds have been narrowly defined in case law and do not allow the exercise of the broad discretion of the latter. Strickland v. Galloway, supra...
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Ewing v. Johnston
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...constitutes the general policy of our law, as indicated and embodied in our statutes for opening defaults. See Clements v. United Equity Corp., 125 Ga.App. 711, 188 S.E.2d 923 and The grounds of the motion to set aside the default, were substantially that the defendant left the papers serve......
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