Haire v. Cook
| Decision Date | 29 September 1976 |
| Docket Number | No. 31287,31287 |
| Citation | 237 Ga. 639,229 S.E.2d 436 |
| Parties | Aaron M. HAIRE et al. v. Dole H. COOK. |
| Court | Georgia Supreme Court |
Twitty & Twitty, John F. Salter, Camilla, for appellants.
Smith, Geer, Brimberry & Kaplan, Peter Zack Geer, Daniel MacDougald, III, Albany, for appellee.
This appeal arises from the grant of defendant's motion for summary judgment. In addition, it involves matters relating to default, disqualification of the trial judge, mortgage, consideration for an option, and the statute of frauds. The material facts as to which there is no genuine issue are as follows:
In 1966 plaintiff Aaron M. Haire acquired two tracts of land containing approximately 337 acres. In 1968, a bank holding a security deed on his property threatened foreclosure. The defendant Dole Cook became aware of the threatened foreclosure but made no commitments until he discussed the matter with Randolph Haire, Aaron's brother. Defendant admitted on deposition that at this meeting, attended only by himself and Randolph Haire (since deceased), he agreed that in exchange for a warranty deed from Aaron Haire he would pay Aaron Haire's debt to the bank and would reconvey the property to Aaron's son Steven Haire upon his attaining age 21 and paying the defendant the principal plus eight percent interest.
On February 12, 1968, Aaron Haire duly executed and delivered a warranty deed for the property to the defendant for the stated consideration of ten dollars and other valuable consideration. There was no mention made of the oral agreement at this meeting. The defendant issued his check for $69,000 to the bank. Aaron Haire and his family remained in possession of the land.
Steven Haire became 21 on October 10, 1969. He leased the property from the defendant by written leases for the years 1970, '71, '72, and '73. The 1973 lease expressly acknowledges that the defendant is the fee simple owner of the property.
Aaron Haire filed suit January 9, 1973. The original complaint alleged that the oral agreement was that plaintiff Aaron Haire would repay defendant Cook the amount the defendant paid the bank, plus interest at eight percent, by the time Steven Haire became 21 in the fall of 1969. It was alleged that the warranty deed of February 12, 1968, was intended to secure repayment of plaintiff's obligation to defendant but that defendant has refused to accept repayment. Plaintiff alleged that some payments had been made to defendant and prayed for a determination of the amount due and, upon payment of that amount, cancellation of the deed as a cloud on plaintiff's title.
The defendant, represented by counsel of record, filed a timely answer denying the material allegations and raising the defense of laches. By amendment, the defendant asserted the statute of frauds as a defense in that the alleged oral agreement involved the sale of land and was not to be performed within one year.
After the taking of the depositions of plaintiff Aaron Haire and defendant Dole Cook, an amended complaint was filed adding Steven Haire as a plaintiff, striking the material allegations and prayers of the original complaint, and alleging in lieu of the original claim essentially the same allegations as before except as to plural plaintiffs and adding allegations seeking to excuse lack of tender and praying for reformation of the deed.
A consent order was entered on November 16, 1974, by the judge of the Pataula Judicial Circuit allowing the amended complaint and requiring the defendant to answer it within thirty days. In late February 1975 plaintiff presented to the presiding judge, but did not file, a motion for partial summary judgment based on default. The defendant's amended answer was not filed until February 27, 1975, at which time costs were paid. On March 11, 1975, the defendant filed a verified motion stating that the defendant did not consent to the court's order of November 16, 1974. On March 14, 1975, defendant filed a motion to open default and for an order allowing his amended answer.
The presiding judge disqualified himself by reason of relationship to one of defendant's counsel by order dated and made effective as of March 13, 1975. Thereafter his successor granted defendant's motion to open default and later granted defendant's motion for summary judgment as to each plaintiff separately.
Plaintiffs appeal, enumerating error on the order allowing the default to be opened and the order granting summary judgment.
1. Code Ann. § 81A-155(a) provides that 'If in any case an answer has not been filed within the time required by this Title, such case shall automatically become in default unless the time for filing the answer has been extended as provided by law.' Code Ann. § 81A-115(a) provides that when required by an order of the court, a defendant shall plead to an amended complaint within 15 days after service of the amendment unless the court orders a different time for response.
Plaintiffs urge that the defendant's amended answer was not filed within the time required by Title 81A and that this case was in default as of 30 days after the court's order of November 16, 1974, requiring the defendant to respond within 30 days.
Plaintiffs urge that when defendant's answer to the amended complaint was filed on February 27, 1975, the case was in a phase 2 default. (See Davis and Shulman's Ga. Prac. & Proc., § 8.8 (4th ed)). No default judgment (phase 3) was ever entered on plaintiff's motion.
Defendant's counsel urges that the presiding judge was disqualified by Canon 3 C(1)(d)(ii) of the Code of Judicial Conduct effective January 1, 1974 (231 Ga. A-1), by reason of the relationship between the judge and one of defendant's counsel, as shown by the order of disqualification dated March 13, 1975. Disqualification under Canon 3C is mandatory, Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568 (1975). Defendant's counsel urges that the presiding judge's order of November 16, 1974, requiring the defendant to answer the amended complaint, therefore was void, nugatory and of no force and effect. Defendant cites Howard v. Warren, 206 Ga. 838(4), 59 S.E.2d 503 (1950), Garland v. State, 110 Ga.App. 756, 758, 140 S.E.2d 46 (1964), and Lamas v. Baldwin, 128 Ga.App. 715, 717, 197 S.E.2d 779 (1973), for the proposition that an order entered by a disqualified judge is nugatory. Defendant's counsel urges next that the disqualification of a judge can only be waived in writing signed by all parties and lawyers pursuant to Canon 3 D of the Code of Judicial Conduct, supra. Defendant's counsel urges further that although the lawyers signed the November 16, 1974, order consenting to the filing of plaintiff's amended complaint, the parties did not.
We are unable to agree that the only means of waiving the disqualification of a judge is an agreement in writing signed by all parties and lawyers. In Georgia Power Co. v. Watts, 184 Ga. 135(9), 190 S.E. 654 (1937), it was held that 'A waiver of disqualification of a judge may be effected expressly by agreement, or impliedly by proceeding without objection with the trial of the case with knowledge of the disqualification.' Affidavits filed on behalf of plaintiffs in the case before us state that the relationship of judge and counsel was and has been known to all parties. No counter-affidavit as to this point has been made.
Plaintiffs urge that the defendant, with knowledge of the disqualification of the presiding judge, cannot ignore it until after an order affecting the defendant is entered and then have said order declared null and void retroactively. We agree and find that the court below did not err in refusing to make the disqualification retroactive, did not err in refusing to declare the November 16, 1974, order to be void, and did not err in treating the case as being in default.
Defendant urges that even if this case were in default, the court did not err in allowing it to be opened. We agree. This is not the usual type of default. The defendant did not ignore the process of the court and refuse to respond to its summons. The original answer of the defendant was duly filed.
The default in this case was similar to a failure to answer interrogatories or a failure to respond to requests for admissions. Viewing the true nature of the default, we find that the court below did not abuse its discretion under Code Ann. § 81A-155(b) in opening the default on the ground that a proper case had been made for the default to be opened. Axelroad v. 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...
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