Hazzard v. Phillips, 38270
| Citation | 287 S.E.2d 191,249 Ga. 24 |
| Decision Date | 16 February 1982 |
| Docket Number | No. 38270,38270 |
| Parties | HAZZARD v. PHILLIPS et al. |
| Court | Supreme Court of Georgia |
Thomas M. Jackson, Macon, for Maurice Hazzard.
V. J. Adams, Jr., Macon, for Wilhelmina Phillips et al.
The appellees filed a petition in equity to partition certain real property which they claim to own along with the appellant as heirs-at-law of a deceased brother. The petition alleged, inter alia, that a previous administration of the estate, which lasted for several years, had failed to settle the property; that a second administration had been attempted by them, but was denied by the probate court on grounds that the court records showed that the previous administrator had been duly discharged, upon proceedings which reflected payment of debts and distribution of assets to the heirs. (The property in question here had been conveyed jointly to the present parties by a deed executed by the administrator and duly recorded.) The petition further alleged that the appellant claims to have improved the property, and that the appellees are entitled to an accounting of the improvements made. Further, that one of the appellees, during the administration, had obtained a security deed against the property through assignment, as well as quitclaim deeds from several of the named appellees, and that her rights to the property by virtue of these deeds should be declared by the court.
The case became in default on April 10, 1981. During the 15-day grace period provided by Code Ann. § 81A-155(a) in which the default could be opened as a matter of right, the appellant filed an answer and a counterclaim, without the payment of any costs. The answer alleged that the petition was not properly brought as a partition proceeding, and presented no case and controversy between the parties of which the court had jurisdiction. The counterclaim alleged that the appellees had orally agreed to sell the property to the appellant for a purchase price indicated on an appraisal caused to be made by two of the appellees; that this parol agreement provided that payment was to be deferred until the appellant had improved the run-down property so that it could be rented; and that, relying upon the agreement, the appellant had invested considerable money and labor to render the structure suitable for occupation.
After the expiration of the 15-day grace period, the plaintiffs-appellees filed motions to dismiss and strike the defendant's answer and counterclaim, for default judgment, and for the appointment of a receiver. Thereafter, counsel for the appellant paid the court costs.
A hearing was held on May 28 on the motion to strike. Although no order to this effect appears in the record before us, counsel for both parties on appeal state that the trial judge announced that he would hold in abeyance his ruling on the motion and allow the appellees' attorney to depose the appellant. Counsel for both parties agreed to the appointment of a receiver for purposes of collecting and preserving rents from the property.
After the taking of the appellant's deposition, the appellees filed a motion for summary judgment. After a hearing, the trial judge entered an order granting the motion to dismiss and strike the answer and counterclaim; directing the appointed receiver to sell the property at a public sale, with the proceeds to be distributed upon a further order of the court; and granting the motion for summary judgment. The appeal is from this order.
1. The trial judge did not err in granting the motion to dismiss the appellant's answer and counterclaim. Code Ann. § 81A-155(a) provides in part, "The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs." (Emphasis supplied.) Full payment of costs is a condition precedent to opening a default. Marbut Co. v. Capital City Bank, 148 Ga.App. 664, 666(2), 252 S.E.2d 85 (1979). Therefore, since the appellant did not pay the costs during the 15-day grace period, the filing of his answer and counterclaim did not alone open the default as a matter of right.
Nor was the default technically opened at the trial judge's...
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Ewing v. Johnston
...within 15 days following the default in this case, without payment of costs, does not alone open the default. Hazzard v. Phillips, 249 Ga. 24, 25, 287 S.E.2d 191. Although both counsel and the trial court apparently were under the impression that defendant's answer was timely filed, this ac......
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Davis v. SOUTHERN EXPOSITION MANAGEMENT
...Walker, 197 Ga.App. 345, 346(1), 398 S.E.2d 297 (1990). Merely offering to pay costs, as here, is insufficient. Hazzard v. Phillips, 249 Ga. 24, 25(1), 287 S.E.2d 191 (1982). When this statutory requirement is not met, the trial court lacks discretion to open the default. Stinson v. Georgia......
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Cohran v. Carlin
...him from offering any defenses which would defeat the right of recovery. Id. at 287-88, 223 S.E.2d 482. Accord Hazzard v. Phillips, 249 Ga. 24(2), 287 S.E.2d 191 (1982); Perrin v. Kilgore, 158 Ga.App. 300, 301(1), 279 S.E.2d 714 (1981). All of the defenses in question--public policy, clean ......
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Stinson v. Georgia Dept. of Human Resources Credit Union
...are conditions precedent in the absence of which the trial court has no discretion to open the default. Hazzard v. Phillips, 249 Ga. 24(1), 287 S.E.2d 191 (1982); Global Assoc. v. Pan American Communications, 163 Ga.App. 274(1)(b), 293 S.E.2d 481 (1982); Coleman v. Dairyland Ins. Co., 130 G......
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...Holland v. Tennyson, 201 Ga. App. 125, 410 S.E.2d 447 (1991). 317. O.C.G.A. Sec. 9-11-55 (1982) (emphasis added). 318. Hazzard v. Phillips, 249 Ga. 24, 26, 287 S.E.2d 191, 193 (1982); accord Moss v. Wilkie, 210 Ga. App. 688, 437 S.E.2d 367 (1993); Krystal Co. v. Carter, 180 Ga. App. 667, 35......
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...Holland v. Tennyson, 201 Ga. App. 125, 410 S.E.2d 447 (1991). 317. O.C.G.A. Sec. 9-11-55 (1982) (emphasis added). 318. Hazzard v. Phillips, 249 Ga. 24, 26, 287 S.E.2d 191, 193 (1982); accord Moss v. Wilkie, 210 Ga. App. 688, 437 S.E.2d 367 (1993); Krystal Co. v. Carter, 180 Ga. App. 667, 35......