Ewing v. Johnston

• Decision Date: 04 September 1985
• Docket Number: No. 70508,70508
• Citation: 175 Ga.App. 760,334 S.E.2d 703
• Parties: EWING et al. v. JOHNSTON.
• Court: Georgia Court of Appeals

Page 703

334 S.E.2d 703

175 Ga.App. 760

EWING et al. v. JOHNSTON.

No. 70508.

Court of Appeals of Georgia.

Sept. 4, 1985.

Joseph E. Cheeley, Jr., Joseph E. Cheeley III, Buford, for appellants.

Gregory T. Presmanes, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Plaintiff/appellant was a minor passenger in a pickup truck driven by Ronald Green, which collided with an automobile driven by the defendant Charles Johnston. Plaintiff, through his parents as next friend, brought this action for damages for injuries suffered in the collision. Plaintiff appeals from a jury verdict for the defendant. Held:

1. Plaintiff alleges the trial court erred in "failing to enter a default judgment as to liability" of the defendant. We do not agree. Defendant was served with the summons and complaint on June 25, 1983. The return of service was filed on July 6, 1983. Defendant's answer was filed on August 5, 1983--41 days after acknowledgment of service, but within 30 days from the date of filing of return. From a transcript of a motion to supplement the record in the instant case, it appears that counsel for the defendant and the trial court were under the impression that it was the date of filing of the return, and not the date of service, that started the running of the 30 days in which an answer must be filed. In addition, counsel for the defendant supplied records kept in the regular course of business in his office which showed that on August 5, 1983 he had been granted an extension of time to file the defendant's answer until the following "Monday," August 8, 1983, if he did not file an answer on August 5. Counsel for defendant also produced a copy of a letter, dated May 29, 1985, which confirmed a telephone call of May 28, 1985, with plaintiff's counsel that defendant had been given an extension of time to file his answer in a conversation on August 5, 1983. However, counsel for defendant was able to file an answer on August 5, which he and the trial court believed would be within the statutory time to file, and plaintiff's counsel was aware that he had verbally consented to the late filing of defendant's answer, as late as August 8, 1983. Accordingly, the issue of default was never raised prior to trial, during the trial, nor after the trial, until this appeal. Nor did plaintiff's counsel ever move for entry of default judgment. Hence, the record is devoid of any evidence of the payment of costs or requests to open default--either within the 15 days following default as a matter of right, or after the 15 days but prior to judgment, for providential cause of excusable neglect. OCGA § 9-11-55. A default cannot be opened following judgment. Allstate Ins. Co. v. Travelers Ins. Co., 249 Ga. 504(3), 291 S.E.2d 535.

Several issues are presented by this posture of the record at the time of trial on the issues: (a) When does the time begin to run in computing the 30-day period a defendant has to answer under OCGA § 9-11-12(a)? (b) Was the extension of time granted counsel for defendant to answer effective? (c) Should the trial court have entered a default judgment?

(a) "A defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute." (Emphasis supplied.) OCGA § 9-11-12(a). The code also provides that process shall be served personally by the sheriff (OCGA § 9-11-4(c) ), and one subsection provides "defendant shall have 30 days after such service in which to appear and answer...." (Emphasis supplied.) OCGA § 9-11-4(d)(1). The person serving process is required to make proof of service promptly, but "[f]ailure to make proof of service shall not affect the validity of the service." OCGA § 9-11-4(g). Hence, taking the statutes literally, the sheriff shall personally serve a defendant with process, and the defendant has 30 days "after such service" "upon him" to appear and answer. OCGA §§ 9-11-4(d)(1), 9-11-12(a). Time would appear to begin to run from date of actual service upon a defendant, and not from filing of the return. This conclusion is buttressed by the code which states that the failure to make return of service will not affect validity of the service, and if no return is made the service is valid and time cannot possibly be computed from the filing of the return because time would never start where the return is never filed--even after making personal service on a defendant. The critical issue has always been "the fact of service and not the nature of the return." Harvey v. Harvey, 147 Ga.App. 154(1), 248 S.E.2d 214. We conclude that the 30 days within which a defendant has to file an answer begins to run from the date of service and not from the filing of the return.

(b) Because time ran from the actual date of service, default occurred on the 31st day following service. Thus, defendant was in default on August 5, 1983 when he orally requested and was granted an extension of time from plaintiff's counsel to file an answer. Our code is dispositive of this issue. A request for an extension of time governed by the CPA must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6(b) ), and "by written stipulation of counsel filed in the action...." Id. A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga.App. 502, 171 S.E.2d 361. The filing of the answer by defendant within 15 days following the default in this case, without payment of costs, does not alone open the default. Hazzard v. Phillips, 249 Ga. 24, 25, 287 S.E.2d 191. Although both counsel and the trial court apparently were under the impression that defendant's answer was timely filed, this action was in default when the case was tried on the merits.

(c) Even though this action was in default, " '[o]ur law distinguishes between a default, which involves an interlocutory matter, and a default judgment, which represents final judicial action and the vesting of rights.' " Lanier v. Foster, 133 Ga.App. 149, 153, 210 S.E.2d 326; Clements v. United Equity Corp., 125 Ga.App. 711, 712, 188 S.E.2d 923; see also Foster Co. v. Livingston, 127 Ga.App. 317, 321, 193 S.E.2d 626. Our research has failed to reveal a Georgia case with a sufficiently similar predicate to act as a precedent. However, in Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 314 S.E.2d 199, where two of three defendants were in default for filing an answer on the 31st day following service, and the plaintiff apparently did not notice the default, the case proceeded to trial and after both sides had made opening statements and the trial had commenced, the trial judge noticed that answers of two defendants had been filed late. The non-defaulting defendant was dismissed and the remaining two defendants were declared in default. The defaulting defendants paid costs on the following day and sought to open default but it was refused by the trial judge. In reversing the trial court's decision, the Supreme Court held that this was a "proper case" for opening default and the trial judge abused his discretion because "the plaintiff allowed the case to proceed to trial without moving that the defaulting defendants' answers be stricken and/or for a judgment on the pleadings because of the late filing of the answers ... [and] it must be said that the plaintiff has not been prejudiced by the default and that the interests of truth and justice will be served by allowing these defendants to set up the defenses in their responsive pleadings." Id., p. 402, 314 S.E.2d 199.

Although federal civil procedure as to default judgments is not the same as the Georgia CPA, they are substantially similar and it is of assistance to us to see how they view a default without a default judgment being entered. Under the federal rules, an entry of default is made upon the docket when a defendant fails to answer within the statutory period. "The entry of a default is largely a formal matter and is in no sense a judgment by default. There is no res judicata effect [nor estoppel by judgment] until entry of the judgment by default." 6 Moore's Fed. Practice 55-17, § 55.03. Entry of default in the docket is only official recognition that a party has failed to comply with the rules and "is an interlocutory step ... in anticipation of a final judgment by default." 10 Wright-Miller-Kane, Fed. Practice & Procedure 465, § 2692.

In the instant case, defendant answered within 15 days of default, but plaintiff neither moved for a default judgment, nor moved to strike the answer, or raised any issue of default before this appeal. No ruling of the trial court was ever obtained on this issue and under the Georgia CPA it is clear that the issue of default and the opening of default are to be decided by the trial court. OCGA § 9-11-55. Further, contrary to what plaintiff contends, our code does not require the trial judge, sua sponte, to enter default judgment where such issue is never raised. See OCGA § 9-11-55. Defendant could have opened default as a matter of right within 15 days of default by filing his defense and upon payment of costs, or at any time thereafter before judgment, within the discretion of the trial court, upon payment of costs for providential cause or excusable neglect when a proper case has been made. OCGA § 9-11-55. Accordingly, the defendant is at fault for failing to file his answer within the statutory period, or obtaining an extension of time in accordance with OCGA § 9-11-6(b). The plaintiff is also at fault for failing to raise the issue of default, which should be presented to the trial court (OCGA § 9-11-55), and permitting the case to proceed to trial on the merits. Muscogee Realty Dev. Corp., supra.

The rule permitting opening of default is remedial in nature and should be liberally applied (Schwab v. Bullock's, 508 F.2d...