Daniell v. Heyn
| Decision Date | 09 February 1984 |
| Docket Number | No. 67003,67003 |
| Citation | 315 S.E.2d 284,169 Ga.App. 772 |
| Parties | DANIELL v. HEYN. |
| Court | Georgia Court of Appeals |
Edgar G. Kimsey, Jr., Columbus, for appellant.
H. Norwood Pearce, Joseph W. Powell II, Columbus, for appellee.
On November 10, 1982, appellee-plaintiff filed a complaint against appellant and another defendant. Appellant's co-defendant filed a timely answer. However, appellant did not. On December 29, 1982, appellee obtained a default judgment against appellant. The order granting default judgment did not contain "an express determination that there is no just reason for delay and ... an express direction for entry of judgment." OCGA § 9-11-54(b) (Code Ann. § 81A-154) Subsequently, appellant filed a "motion to vacate judgment," which was later amended to seek the opening of the default pursuant to OCGA § 9-11-55(b) (Code Ann. § 81A-155). Appellant's motion was denied in an order in which the trial court apparently concluded that appellant was "not entitled to the relief sought" because the default judgment was final. Appellant appeals from the denial of that motion.
1. Appellant enumerates as error the trial court's failure to exercise its discretion in ruling on the motion. Williams v. Citizens & Nat. Bank, 142 Ga.App. 346, 349, 236 S.E.2d 16 (1977).
The default judgment in the instant case was not final and Williams is controlling authority. Insofar as the trial court ruled that appellant was "not entitled to ... relief" pursuant to OCGA § 9-11-55(b) (Code Ann. § 81A-155) because the default judgment had "not been set aside" and was final, the order denying appellant's motion was predicated upon an erroneous legal theory. "We will cure this error by returning the case to the trial court for a valid exercise of the judge's discretion." Williams v. Citizens & Nat. Bank, supra at 350, 236 S.E.2d 16.
2. In light of our holding in Division 1, it is unnecessary to address appell...
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Conseco Finance Servicing Corp. v. Hill
...261 Ga. 587(1), 408 S.E.2d 103 (1991); Rogers v. Dept. of Human Resources, 195 Ga.App. 118, 392 S.E.2d 713 (1990); Daniell v. Heyn, 169 Ga.App. 772(1), 315 S.E.2d 284 (1984). 2. Conseco contends the trial court erred by awarding damages because the facts admitted by its default do not suppo......
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Troika Entm't, LLC v. Mendez
...defendants was not a final judgment because The Color Purple was still a party. So OCGA § 9-11-55 (b) applied. Daniell v. Heyn , 169 Ga. App. 772, 315 S.E.2d 284 (1984) (because only one of two defendants defaulted, judgment was not final and court had discretion to set aside default under ......
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Travelers Indem. Co. of Rhode Island v. Schenden, 74216
...256); Hancock v. Oates, 244 Ga. 175, 177 (259 SE2d 437)." Spivey v. Rogers, 167 Ga.App. 729, 307 S.E.2d 677. See also Daniell v. Heyn, 169 Ga.App. 772, 315 S.E.2d 284. Appeal SOGNIER and BEASLEY, JJ., concur. ...