Foster Co. v. Livingston

Decision Date05 September 1972
Docket NumberNo. 47189,No. 2,47189,2
PartiesThe FOSTER COMPANY v. Percy D. LIVINGSTON
CourtGeorgia Court of Appeals

Adams, O'Neal & Hemingway, Thomas W. Talbot, Macon, for appellant.

Shepard & Berenthien, Virgil H. Shepard, Macon, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

Paragraph (b) of Section 55 of the Civil Practice Act (Ga.L.1966, pp. 609, 659; Code Ann. § 81A-155(b) provides: 'At any time before final judgment, the court, in its discretion, upon payment of costs may allow the default to be opened for providential cause preventing the filing of a plea or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.' This Section is substantially the same as the old law embodied in former Code Section 110-404.

When the defendant here complied with the requirements of Section 55(b) of the Civil Practice Act, and the trial judge from all of the facts determined 'that a proper case had been made for the default to be open,' we can not, under the facts, say that the trial judge abused his discretion even though there was no providential cause or excusable neglect. See Brawner v. Maddox, 1 Ga.App. 332, 337, 58 S.E. 278, 281, where this court, in reference to the old statute said: 'The wording of section 5072 is such that it conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say 'Where the judge from all the facts shall determine that a proper case has been made,' etc. We cannot say that the learned trial judge abused the discretion as insisted by plaintiff in error.' See also Butler & Co. v. Strickland-Tillman Hardware Co., 15 Ga.App. 193, 82 S.E. 815; and Strickland v. Galloway, 111 Ga.App. 683, 143 S.E.2d 3 followed in Clements v. United Equity Corp., 125 Ga.App. 711, 188 S.E.2d 923.

Neither did not trial judge err in refusing to dismiss the answer filed by the defendant and in refusing to enter judgment for the plaintiff as in cases of default.

Judgment affirmed.

HALL, P.J., and QUILLIAN, J., concur.

ON MOTION FOR REHEARING

PANNELL, Judge.

The appellant, in its motion for rehearing, contends that the decision of the Supreme Court of this State, in Sanders v. American Liberty Insurance Co., 225 Ga. 796, 171 S.E.2d 539 is controlling here and requires a different result. The writer of this opinion in the present case was one of those dissenting when the Sanders case was before the Court of Appeals (120 Ga.App. 202, 170 S.E.2d 249), prior to its reversal by the Supreme Court. The facts in the Sanders case were that the defendant's designated agent for service was served with two suits but did not forward one of the suits because he thought, erroneously, that plaintiff had made an error, and would discover it and dismiss the action not forwarded for answer. As stated by the Supreme Court, there was a deliberate and intentional failure to obey the process of the court. Here, we have no such situation. The trial judge's order, among olther things, recites the following: 'In the above stated case, plaintiff's complaint against defendant seeking judgment on open account was filed in this court and was served on defendant October 14, 1971. Defendant did not file answer within thirty days after service but did tender an answer which the clerk of this court filed on November 16, 1971, that being thirty-three days after Defendant had been served. Defendant failed at that time to pay the court costs. The answer denied that defendant was indebted to Plaintiff. The case was placed on the calendar of jury cases ready for trial for the week beginning December 7, 1971, at 10 a.m. At the call of that trial calendar on December 3 1971, said case was continued by agreement. Subsequently, on December 7, 1971 (fifty-four days after service on defendant) and after the case had first appeared on the trial calendar, as aforesaid, there was filed in the clerk's office, plaintiff's motion to strike defendant's answer and for a default judgment. That motion was assigned for a hearing and postponed to accommodate counsel and came on for hearing on January 25, 1972. On that same day, January 25, 1972, defendant paid the court costs which had accured in the case, $16.50, and at the hearing defendant's counsel tendered, and there has been filed, defendant's verified motion to open default and offered in the motion to plead instanter and announced readiness to proceed to trial, alleging that all costs incurred in this case have been paid. At the hearing, plaintiff's counsel took the position that defendant's answer filed later than thirty days after service, was a nullity because it was not accompanied by payment of costs, plaintiff contending that there was no cause, under Georgia Code Sec. 81A-155(b) to justify opening the default. At the hearing, defendant's counsel stated in his place (plainti...

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13 cases
  • Ewing v. Johnston
    • United States
    • Georgia Court of Appeals
    • 4 Septiembre 1985
    ...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. How......
  • Houston v. Lowes of Savannah, Inc.
    • United States
    • Georgia Court of Appeals
    • 26 Noviembre 1975
    ...111 Ga.App. 683, 143 S.E.2d 3 followed in Clements v. United Equity Corp., 125 Ga.App. 711, 188 S.E.2d 923.' Foster Co. v. Livingston, 127 Ga.App. 317, 318, 193 S.E.2d 626, certiorari denied by this '. . . The opening of the default caused no delay in the trial of this case, resulting in ha......
  • Ayers v. Mobley
    • United States
    • Georgia Court of Appeals
    • 8 Julio 1982
    ...209; Tippins Bank & Trust Company v. Atlantic Bank & Trust Company, 151 Ga.App. 179, 180-181(3), 259 S.E.2d 179; Foster Company v. Livingston, 127 Ga.App. 317, 193 S.E.2d 626. There is no merit in the contention that the trial court erred in opening the default which was within the discreti......
  • Haire v. Cook
    • United States
    • Georgia Supreme Court
    • 29 Septiembre 1976
    ...Preston, 232 Ga. 836, 209 S.E.2d 178 (1974); Houston v. Lowes of Savannah, 235 Ga. 201, 219 S.E.2d 115 (1975); Foster Co. v. Livingston, 127 Ga.App. 317, 193 S.E.2d 626 (1972). Where a defendant answers the original complaint but fails to comply with an order requiring an answer to an amend......
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