Johnson v. Dockery

• Court: Georgia Supreme Court
• Writing for the Court: ALMAND
• Citation: Johnson v. Dockery, 150 S.E.2d 921, 222 Ga. 569 (Ga. 1966)
• Decision Date: 06 October 1966
• Docket Number: No. 23617,23617
• Parties: S. H. JOHNSON v. W. L. DOCKERY et al., Commissioners.

Page 921

150 S.E.2d 921

222 Ga. 569

S. H. JOHNSON v. W. L. DOCKERY et al., Commissioners.

No. 23617.

Supreme Court of Georgia.

Oct. 6, 1966.

Syllabus by the Court

It was not error for the trial court to sustain a general demurrer to a petition seeking to open a default judgment where the petition set forth no facts either to show a meritorious defense or to require the trial judge to exercise his discretion as a matter of law.

Arthur C. Farrar, Douglas, for appellant.

J. W. Waldroup, Douglas, for appellees.

ALMAND, Justice.

The sole enumeration of error is to an order sustaining a general demurrer to a petition seeking to open a default judgment in an equity case and permit the petitioner, the defendant in said case, to file defensive pleadings.

The petition alleged that the named defendants, as Commissioners of Coffee County, in June, 1965, filed a petition in Coffee Superior Court seeking to enjoin the petitioner from interfering with the construction of a road through certain described land. Petitioner was served and appeared at a hearing on the rule nisi on June 14, 1965. Petitioner did not employ counsel until about September 17, 1965. He alleges that 'he has a meritorious defense in said matter and that he is ready and willing to plead instanter and hereby announces ready to proceed with trial and he has paid all accrued cost.'

Code § 110-404 as amended provides that at any time before final judgment, the trial judge in his discretion, upon the payment of costs, may allow the defendant to open a default for (a) providential cause which prevented the filing of a plea, (b) for excusable neglect or (c) where the judge determines that a proper case has been made for...