Houston v. Lowes of Savannah, Inc.

• Decision Date: 26 November 1975
• Docket Number: 3,2,Nos. 1,No. 50054,50054,s. 1
• Citation: 222 S.E.2d 209,136 Ga.App. 781
• Parties: D. C. HOUSTON v. LOWES OF SAVANNAH, INC
• Court: Georgia Court of Appeals

Page 209

222 S.E.2d 209

136 Ga.App. 781

D. C. HOUSTON v. LOWES OF SAVANNAH, INC.

No. 50054.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 26, 1975.

Burt, Burt & Rentz, Albany, for appellant.

Perry, Walters, Lippitt & Curtis, S. B. Lippitt, Jr., Albany, for appellee.

STOLZ, Judge.

This is an appeal from the grant of a motion to open a default. Lowes of Savannah, Inc. is a Georgia corporation with its principal place of business in Savannah, although its officers all reside in North Carolina. The Savannah manager of the business, Carson, was personally served at his office with a complaint by Houston against Lowes of Savannah, Inc. and other defendants. He handed the papers to the office manager with direction to file them. Eighty-eight days later, after having been alerted by a codefendant, Lowes filed a motion to open the default, alleging that Carson did not recognize the deputy sheriff 'as such,' that he was told 'to hold on to the paper and if anything developed he would be notified'; that he gave it to the office manager with instructions to file it and the latter did so; that he has only a high school education and has never before been served with process.

The trial judge opened the default and allowed defensive pleadings to be filed. Plaintiff appeals via certificate for immediate review. Held:

1. Code Ann. § 81A-155(b) provides for three grounds for opening a default: (1) providential cause, (2) excusable neglect and (3) 'where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened.' See Jordan v. Clark, 119 Ga.App. 18(1), 165 S.E.2d 922 and the Supreme Court's answer to our certified question in the case sub judice. Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 219 S.E.2d 115.

The order of the trial judge opening the default and allowing defensive pleading to be filed (R. 24), shows (1) that the trial judge heard evidence and argument of counsel for both parties, (2) that the judge found from all the facts before the court that a proper case had been made for the default to be opened and that the defendant had fully complied with all legal requirements entitling it to open the default.

The statute plainly gives the trial judge the discretion to open a default when he considers a proper case has been made, and the Supreme Court has so held in Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 219 S.E.2d 115, supra. This is materially different from providential cause and excusable neglect, both of which have been defined in our case law. See annotations to Code Ann. § 81A-155 and former Code Ann. § 110-404. This third ground for opening default is broader than the other two. Its essence is the discretion of the trial judge. To impose 'excusable neglect' and 'providential cause' on a 'proper case' decision by the trial judge, is to excise by judicial surgery one-third of the statute.

In the present case the default was opened prior to judgment. Thus, the trial judge had a broader discretion than he would have, had a judgment been entered. Haynes v. Smith, 99 Ga.App. 433, 436, 108 S.E.2d 772. It must be remembered that the trial judge had the parties before him at the hearing on the motion to open default and had the best opportunity to determine whether there had been a wilful disregard of the process (summons) of the court by the defendant's agent or whether the agent had made an honest mistake relying on the representation of the deputy sheriff at the time the complaint and summons was served.

The trial judge had the opportunity of observing the witnesses, passing on their credibility, and evaluating the full import of their testimony. With only a cold record before us, this court should not merely substitute its judgment for that of the trial judge.

It is urged that this court is bound by the expressions of the Supreme Court in Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. We disagree for two reasons: (1) No two cases of this type are exactly alike, thus each one must be viewed independently. This is particularly true in light of the broad discretion reposed in the trial judge in Code Ann. § 81A-155(b), supra. (2) The latest expression of the Supreme Court in interpreting Code Ann. § 81A-155(b), Axelroad v. Preston, 232 Ga. 836, 837, 209 S.E.2d 178, 179, clearly recognizes the broad discretion the statute reposes in the trial judge. "Paragraph (b) of Section 55 of the Civil Practice Act (Ga.L.1966, pp. 609, 659; Code Ann. § 81A-155(b)) provides: 'At any time before final judgment, the court, in its discretioin, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.' This section is substantially the same as the old law embodied in former Code § 110-404.

"When the defendant here complied with the requirements of Section 55(b) of the Civil Practice Act, and the trial judge from all of the facts determined 'that a proper case had been made for the default to be opened.' we cannot, under the facts, say that the trial judge abused his discretion even though there was no providential cause or excusable neglect. See Brawner v. Maddox, 1 Ga.App. 332, 337, 58 S.E. 278, where this court, in reference to the old statute said: 'The wording of § 5072 is such that it conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, 'where the judge from all the facts shall determine that a proper case has been made,' etc. We cannot say that the learned trial judge abused the discretion as insisted by plaintiff in error.' See also Butler & Co. v. Strickland-Tillman Hardware Co., 15 Ga.App. 193, 82 S.E. 815; and Strickland v. Galloway, 111 Ga.App. 683, 143 S.E.2d 3 followed in Clements v. United Equity Corp., 125 Ga.App. 711, 188 S.E.2d 923.' Foster Co. v. Livingston, 127 Ga.App. 317, 318, 193 S.E.2d 626, certiorari denied by this court.

'. . . The opening of the default caused no delay in the trial of this case, resulting in harm or prejudice to the plaintiff, as the record reveals that the injunctive relief sought by plaintiff has been granted on an interlocutory basis by the trial judge who opened the default in the case. Under these circumstances, we cannot say the trial judge abused his discretion in permitting the default to be opened under the third ground of the statute so that the case can be finally determined on its merits as contended by both parties. Cf. Cate v. Harrell, 128 Ga.App. 219, 196 S.E.2d 155. Therefore, the judgment of the trial court will be affirmed.' Here again, we recognize that the facts in no two cases are exactly alike, but in Axelroad, supra, neither providential cause nor excusable neglect is made the basis of the Supreme Court's decision. Moreover, Sanders v. American Liberty Ins. Co., supra, was by a divided court (Justice Felton dissenting), whereas Axelroad v. Preston, supra, is a unanimous decision. See also Strickland v. Galloway, 111 Ga.App. 683, 143 S.E.2d 3 (1965), which was written before Sanders v. American Liberty Ins. Co., supra (1969); and Foster Co. v. Livingston, 127 Ga.App. 317, 193 S.E.2d 626 (1972), written after Sanders supra, and particularly the opinion of the court on the motion for rehearing in Foster Co., supra, beginning at page 319, 193 S.E.2d 626 concerning Sanders, supra. See also Florida East Coast Properties v. Davis, 133 Ga.App. 932, 213 S.E.2d 79, where default was opened after judgment had been entered.

2. There is yet another reason why we should affirm the trial judge. His order prevents a default in an extremely serious case. It gives the parties their 'day in court.' It allows the case to be decided on its merits-which is what our system of justice is all about.

This case is a contradiction of the usual situation before us in that we have the plaintiff urging strict construction of the Civil Practice Act and that the defendant's case be resolved on a technicality. In turn, the defendant now urges broad construction of the Civil Practice Act and resolution of the case on its merits. We suppose it all depends on whose ox is being gored. The trial judge exercised his discretion and took the high road. We are unable to hold that as a matter of law he abused his discretion.

Judgment affirmed.

BELL, C.J. and QUILLIAN, CLARK and MARSHALL, JJ., concur.

PANNELL, P.J., concurs in the judgment only.

DEEN, P.J., and EVANS and WEBB, JJ., dissent.

EVANS, Judge (dissenting).

How does a defendant open a default? Consider the defendant, Lowes of Savannah, Inc., who waited 88 days after service before offering to file defensive pleadings, and whose delay in filing was not for providential cause, and whose neglect was inexcusable.

According to the majority opinion in this case, it is as easy as falling off a slippery log. It is simple! It is easy! No problem! All that is required of the defaulting defendant is that he tell the judge of the court that his agent was deceived by the deputy who served copy of summons and complaint upon him, that the deputy sheriff told defendant's manager 'to hold onto the paper and if anything developed he would be notified.' Then the defendant is home-free; he is excused for his grossly negligent conduct in not reading the document (a document so important that a deputy sheriff came to defendant's place of business and personally handed the document to d...