Coleman v. Dairyland Ins. Co.
| Decision Date | 26 October 1973 |
| Docket Number | No. 2,No. 48411,48411,2 |
| Citation | 130 Ga.App. 228,202 S.E.2d 698 |
| Parties | Carrie COLEMAN et al. v. DAIRYLAND INSURANCE COMPANY |
| Court | Georgia Court of Appeals |
John N. Crudup, Gainesville, for appellants.
Whelchel, Dunlap & Gignilliat, Weymon H. Forrester, William Rogers, Gainesville, for appellee.
Syllabus Opinion by the Court
Carrie Coleman, Robert Coleman and Mozelle Sanders, plaintiffs in damage actions arising out of an automobile collision, here appeal the trial court's grant to appellee Dairyland Insurance Company of summary judgment on Dairyland's declaratory judgment action against them seeking to establish its non-liability as the defendant-driver's insurer.
The three appellants were injured in an automobile crash while riding in an automobile driven by Charley Hopson and owned by Dairyland's insured, Milton Rance. Appellants each brought suit against Hopson and Rance, and Dairyland filed defensive pleadings for both under a reservation of rights as to Hopson who, they assert, was using the Rance automobile without permission and was therefore not an additional insured.
Following certain discovery procedures, on August 8, 1972, Dairyland filed the instant declaratory judgment action seeking to determine whether Hopson was covered by the policy. Hopson and the appellants were made defendants and all were served personally by the end of the day on August 10. Appellants neglected to inform their attorney of their receipt of the petition and, learning of it from another source some three months later, he filed a purported answer on November 10th, unaccompanied by the payment of costs or by any motion to open the default. Dairyland moved to strike the answer and for a default judgment. Appellants through their attorney then filed a motion to open the default under Code Ann. § 81A-155(b). After a hearing on both outstanding motions, the trial judge found no merit 'in fact or in law' in the motion to open default, and awarded Dairyland a default judgment for the relief prayed for.
Appellants' six enumerations of error all urge that the trial court erred in declaring the suit in default and giving judgment for Dairyland. Additionally, by way of supplemental brief, appellants contend that the trial judge should have dismissed the declaratory judgment action because it presented no justiciable controversy.
With reference to the trial court's refusal to open the default, this point is decided against appellants by the fact that on the record presented the trial court was without discretion to take any other action because appellants' motion to open the default failed in numerous particulars to comply with the requirements of Code Ann. § 81A-155(b).
In opposition to the requirements of that Code section, appellants failed to pay costs; filed no verified motion and submitted no affidavit in support thereof; and failed entirely to refer to a defense of appellants on the merits. Moreover, by way of excusable neglect they averred only that they were ignorant of the significance of the petition and were wholly occupied with a critically ill, hospitalized child.
Without the necessity for considering other defects in the motion, its failure to show a meritorious defense is alone fatal to appellants' cause. Georgia law requires that facts regarding such a defense be set forth, and a mere statement (which is more than appellants averred) that the party 'has a good and meritorious defense to the declaration' is inadequate. Georgia Highway Express Co. v. Do-All Chemical Co., 118 Ga.App. 736, 165 S.E.2d 429; Pryor v. American Trust and Banking Co., 15 Ga.App. 822, 84 S.E. 312. Moreover, this requirement is a condition precedent; in its absence, the trial judge had no discretion to open the default. Georgia...
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...judge could exercise sound discretion; the affidavit failed to set forth a " 'good and meritorious defense.' " Coleman v. Dairyland Ins. Co., 130 Ga.App. 228, 229, 202 S.E.2d 698; see also Town of Thunderbolt v. River Crossing Apts., Ltd., 189 Ga.App. 607, 377 S.E.2d 12. Where the condition......
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