Goldberg v. Painter

• Decision Date: 07 February 1973
• Docket Number: No. 47748,No. 2,47748,2
• Citation: 196 S.E.2d 157,128 Ga.App. 214
• Court: Georgia Court of Appeals
• Parties: Jay GOLDBERG v. J. Hunter PAINTER

Page 157

196 S.E.2d 157

128 Ga.App. 214

Jay GOLDBERG v. J. Hunter PAINTER.

No. 47748.

Court of Appeals of Georgia, Division No. 2.

Feb. 7, 1973.

Nall, Miller & Cadenhead, Gerald A. Friedlander, Atlanta, for appellant.

J. C. Rary, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

After rendition of judgment by default, did the trial court err in granting defendant-appellee's motion to set aside such default judgment where legal service had been made at defendant's residence by leaving a copy with his wife?

Goldberg, an architect, sued Painter in the State Court of DeKalb County alleging a debt due him for professional services. The officer's return of service dated April 28, 1972, recites the court papers were left at defendant's 'Most notorious place of abode in this county. Delivered same into the hands of wife . . . domiciled at the residence of the defendant.' No timely defense being filed, judgment was rendered by default on June 16, 1972. Thereafter an execution was issued with a copy of the fieri facias being mailed defendant ten days later. Defendant averred this was his first notice of the suit. Such averment is made in his motion to set aside the judgment wherein it is further alleged that the first notice he had of any claim by plaintiff was a letter dated March 1, 1972, in which plaintiff stated he had been to defendant's home during his absence so that 'the plaintiff knew that he was out of the country'. His motion also noted his employment as an engineer required him to travel. He further averred 'he has a meritorious defense, offers to plead instanter and answers ready to proceed with the trial.' This motion to set aside the default judgment was sustained with the court ordering both the judgment and the accompanying fi. fa. to be set aside. This appeal is from that order. Held:

This case is on all fours with Davison-Paxon Co. v. Burkart, 92 Ga.App. 80, 88 S.E.2d 39. There service was made at the residence by handing a copy to the spouse, which duplicates the situation here. Beginning on the last line of page 83, 88 S.E.2d page 42 our court said: 'Here we have a case where the defendant was legally served at his residence. He admits it; but we are asked, in effect, to hold that, where a default judgment is rendered against a defendant who was unaware of the valid service, the judgment should be set aside simply upon a showing that he had a meritorious defense, even though his response to the summons was frustrated by his own wife. The prompt and proper functioning of the courts can not be thus impeded. To accept such a view would make it possible for legal service to be emasculated by anyone who felt enough interest in the person served in terms of the law to secretly withhold from him the summons of the court.'

Since Davison-Paxon Co. v. Burkart, 92 Ga.App. 80, 88 S.E.2d 39, supra, the Civil Practice Act has been adopted which provides in Code Ann. § 81A-160(d) that to set aside a default judgment there must be 'some nonamendable defect which does appear upon the face of the record or pleadings.' This differs from the opening of a default prior to judgment under Code Ann. § 81A-155 which permits opening the...