Hamm v. Willis, A91A0726

• Decision Date: 23 October 1991
• Docket Number: No. A91A0726,A91A0726
• Citation: 411 S.E.2d 771,201 Ga.App. 723
• Parties: HAMM v. WILLIS, et al.
• Court: Georgia Court of Appeals

Page 771

411 S.E.2d 771

201 Ga.App. 723

HAMM v. WILLIS, et al.

No. A91A0726.

Court of Appeals of Georgia.

Oct. 23, 1991.

Reconsideration Denied Nov. 4, 1991.

George Hamm, pro se.

Michael J. Bowers, Atty. Gen. and John C. Jones, Sr. Asst. Atty. Gen., for appellee.

SOGNIER, Chief Judge.

George Hamm, a prison inmate, filed suit under 42 U.S.C. § 1983 against Gerald Willis and other prison officials and employees alleging that his loss of certain items of personal property was caused by the defendants in violation of his constitutional rights. A jury found in favor of the defendants. The trial court accepted the jury's verdict and then pursuant to OCGA § 9-15-14 entered judgment against Hamm for the defendants' attorney fees and expenses of litigation. Hamm appeals.

1. Appellant contends the evidence was not sufficient to support the jury's verdict against him and enumerates five other errors regarding what transpired at trial. However, the record reflects that appellant did not request that a transcript be prepared and transmitted with the record on appeal (for the cost of which appellant would be responsible, see Jackson v. Young, 134 Ga.App. 368, 214 S.E.2d 380 (1975)). Accordingly, in the absence of either a transcript or an agreed statement of the events at trial, see OCGA § 5-6-41(f), we must presume the trial judge ruled correctly on all issues presented and that the evidence was sufficient to support the judgment. See generally Triple A Distrib. v. Carrier Reps USA, 193 Ga.App. 348, 349(1), 387 S.E.2d 624 (1989); Attwell v. Heritage Bank Mt. Pleasant, 161 Ga.App. 193, 194, 291 S.E.2d 28 (1982).

2. No showing was made that the denial of appellant's motion seeking appointed counsel would result in fundamental unfairness impinging upon appellant's due process rights or that the circumstances of the case made the presence of counsel necessary. Brown v. Diaz, 184 Ga.App. 409, 411(4), 361 S.E.2d 490 (1987). Thus, although appellant alleges the trial court's denial of his motion rendered him bereft of effective assistance of counsel, we cannot say the trial court abused its discretion. See id.

3. (a) The record reflects that appellant named Gary White as a defendant in his original complaint. While White was listed in the summons that was issued, the record shows he was never served with process. There being no service upon White and the record not indicating that White waived service, it follows that he was not required to answer appellant's complaint, OCGA § 9-11-12(a), and since "[a] default judgment based upon other than legal service is a nullity, [cit.]," Collins v. Peacock, 147 Ga.App. 424, 427(2), 249 S.E.2d 142 (1978), the trial court did not err by refusing to enter default judgment against White.

(b) Appellant also contends the trial court erred by failing to enter default judgment against David Evans, Commissioner of the Department of Corrections. The record reveals that appellant moved to amend his complaint, which the trial court denied on the basis that because no pretrial order had been entered, under OCGA § 9-11-15(a) appellant could amend his complaint as a matter of course without the court's permission. Appellant then filed on June 7, 1988 what was denominated an amended complaint, in which he sought to add Evans as a party defendant. It does not appear that appellant ever moved the court to join Evans as a person needed for the just adjudication of the case as provided by OCGA § 9-11-19(a). See Smith v. Foster, 230 Ga. 207, 208-209(1), 196 S.E.2d 431 (1973). No summons was issued and Evans was never served. Appellant moved for entry of default judgment against Evans on August 1, 1988, which the trial court denied in January 1989. We need not address the trial court's misplaced reliance upon OCGA § 9-11-15(a) and Building Assoc. v. Crider, 141 Ga.App. 825(1), 234 S.E.2d 666 (1977) (holding that a defendant who is already a party to a suit need not file responsive pleadings to an amended complaint), because, as we held in Division 3(a), supra, default judgment cannot be entered against a defendant who has not been served with process.

However, the record next reflects that on June 30, 1989, Evans and the other appellees (not including White) filed a motion to dismiss. Although a motion to dismiss is the proper vehicle to seek resolution of the issue of lack of service or insufficient service of process, see Terrell v. Porter, 189 Ga.App. 778, 779(2), 377 S.E.2d 540 (1989), Evans did not challenge the lack of service in the motion to dismiss but instead addressed the merits of appellant's claim, requiring consideration of evidence outside the pleadings. The trial court thus properly treated the motion to dismiss as a motion for summary judgment, OCGA § 9-11-12(b), and partially granted the motion, disposing of all matters except those which were the subject of the jury trial sub judice. (We note that no exception was taken to the trial court's ruling on appellees' motion.)

In Bigley v. Lawrence, 149 Ga.App. 249, 253 S.E.2d 870 (1979), the appellees filed suit in October 1976 but service was never perfected. A year later appellants filed a motion for summary judgment and the trial court entered default judgment against appellants. This court held that when a defendant files a motion for summary judgment on the merits of the case without having raised an issue as to sufficiency of service of process, he has made a general appearance and thereby waived any alleged defect in the service. Id. at 250, 253 S.E.2d 870; see also Roberts v. Bienert, 183 Ga.App. 751, 753(2), 360 S.E.2d 25 (1987). We then went on to hold that "a defendant has 30 days to file an answer after he waives service by making an appearance in the case because the time jurisdiction is waived is the equivalent of the time service of process is made in a normal case. In the present case, appellants were never served and their motion for summary judgment was filed within the time for filing defensive pleadings although they never did file an answer to the complaint. Therefore, it was error for the trial court to enter a default judgment while a motion was pending before the court which was filed within the time to plead. [Cit.]" Bigley, supra, 149 Ga.App. at 250, 253 S.E.2d 870. It thus appears that Evans was required within 30 days of making his general appearance in the case (the date of filing of the motion to dismiss/summary judgment) to file his answer, id., and that his motion would not serve in lieu of an answer unless the grant of the motion terminated appellant's suit against Evans. See Cato Oil, etc., Co. v. Lewis, 250 Ga. 24, 25-26(2), 295 S.E.2d 527 (1982); Mock v. Copeland, 160 Ga.App. 876, 288 S.E.2d 591 (1982). In the instant case, the trial court's order on Evans' motion did not obviate the requirement for a timely filed answer because it did not completely dispose of the underlying action. It follows that Evans was in default on the issues remaining in appellant's complaint 31 days after Evans made his general appearance in this case.

Nonetheless, even though the action was in default as to Evans, the record reveals that appellant did not raise the issue of default once Evans had made a general appearance, nor did appellant move for entry of default judgment prior to trial, during trial, nor after trial, until this appeal. "The statutory right to judgment following default is not an indefeasible right, but may or may not be asserted ( [cits.] ), and may be waived by a plaintiff by proceeding with the action without taking advantage of his right to judgment in a timely and proper manner. [Cits.] Such waiver need not be expressed, but may be implied in law by conduct or circumstances inconsistent with the right to judgment. [Cits.] Acts which have been held to constitute waiver include: ... joining issue upon the pleadings ( [cit.] ), going to...