Hatcher v. Scarboro

• Decision Date: 19 January 1966
• Docket Number: No. 41694,No. 2,41694,2
• Citation: 113 Ga.App. 103,147 S.E.2d 361
• Parties: Roberta D. HATCHER, Administratrix, v. J. W. SCARBORO, Jr
• Court: Georgia Court of Appeals

Page 361

147 S.E.2d 361

113 Ga.App. 103

Roberta D. HATCHER, Administratrix, v. J. W. SCARBORO, Jr.

No. 41694.

Court of Appeals of Georgia, Division No. 2.

Jan. 19, 1966.

Rehearing Denied Feb. 10, 1966.

Dubignion Douglas, Dublin, for appellant.

H. Dale Thompson, Dublin, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

On September 3, 1963, the plaintiff Hatcher filed suit on a promissory note against Scarboro in the Superior Court of Laurens County, which has terms of court beginning on the fourth Mondays of January, April, July and October of each year. The answer of the defendant was filed October 4, 1963, more than 30 days later, and demurrers to the answer were filed four days thereafter. The plaintiff filed certain interrogatories no January 14, 1965, which were served on the defendant requiring him to make answer within 15 days. The defendant gave the papers to his attorney, who did not advise him of what action to take, failed to make answer as required, and heard nothing further from the case until an execution was recorded against him. On March 3 plaintiff filed a motion to compel the defendant to answer, upon which a rule nisi issued which was served on the defendant and which required him to be present at a hearing set for March 18, 1965, to hear this issue. The defendant failed to appear either in person or through his attorney, at which time the court issued a rule absolute requiring an answer to the interrogatories by April 8. Again no action was taken in the matter. The plaintiff, after the defendant's failure to comply with the latter order, moved to strike the defendant's answer under Code Ann. § 38-2111(b)(2)(iii) which authorizes the court, on the refusal of a party to make answer after being directed to do so by the court, to strike pleadings or render a judgment by default against the disobedient party. On May 11, 1965, the motion was granted, the answer stricken, an a default judgment entered against the defendant. On July 19 the defendant for the first time took notice of the proceedings and moved to have the judgment set aside, the answer re-instated, and a reasonable extension of time granted him to answer the interrogatories. A motion to dismiss the motion to set aside the judgment was overruled and error is assigned on this ruling. Held:

While Code Ann. § 110-404 contemplates the opening of a defalut prior to judgment and where no plea has been filed, even in such case it is error to grant the motion except for providential cause or excusable neglect. Failure or even inability to read and comply with process is not a reasonable excuse but constitutes gross negligence. McMurria Motor Co. v. Bishop, 86 Ga.App. 750, 72 S.E.2d 469. In that case the plaintiff failed to turn the papers over to an attorney. In Drain Tile Machine, Inc. v. McCannon, 80 Ga.App. 373, 56 S.E.2d 165, plaintiff retained an attorney who, after filing a defense, failed to notify his client or appear on the trial of the case because he was moving his office during a part of the time immediately proceeding the call of the case for trial and was out of town on another case during the remainder of the time. The action of the trial court in re-instating the case after having dismissed it for lack of prosecution at the same term was reversed with the statement that '(t)he motion of the plaintiff to have this judgment of dismissal vacated and to have the case re-instated, does not appear to have been founded upon a meritorious reason, nor does sufficient cause appear therefrom for the court to exercise the discretion which it possessed in the premises.' In Godby v. Hein, 107 Ga.App. 481(2), 130 S.E.2d 511 it was held: 'A showing that a party and his counsel failed to appear when his case was regularly scheduled for trial due to some inadvertance, oversight or mistake does not afford sufficient cause for the exercise of a discretion in vacating the judgment.' See also Burger v. Dobbs, 87 Ga.App. 88, 92 73 S.E.2d 75; Cravey v. Citizens &...