Johnson v. Dockery
| Decision Date | 06 October 1966 |
| Docket Number | No. 23617,23617 |
| Citation | 150 S.E.2d 921,222 Ga. 569 |
| Parties | S. H. JOHNSON v. W. L. DOCKERY et al., Commissioners. |
| Court | Georgia Supreme Court |
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.
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 the default to be opened on terms fixed by the court. As a condition precedent to opening the default, the defendant must set up a meritorious defense, offer to plead instanter and answer ready to proceed with the trial.
In the instant case, petitioner set forth neither any facts to show a meritorious defense nor any facts which required the trial judge as a matter of law to exercise his discretion. See Blanch v. King, 202 Ga. 779, 44 S.E.2d 779; Pryor v. American Trust & Banking Co., 15 Ga.App. 822(2), 84 S.E. 312.
It was not error to sustain the general demurrer.
Judgment affirmed.
All the Justices concur.
To continue reading
Request your trial
-
Global Associates, Inc. v. Pan American Communications, Inc.
...91 Ga.App. 549(1), 86 S.E.2d 529; Georgia Highway Express Co. v. Do-All-Chemical Co., 118 Ga.App. 736, 165 S.E.2d 429; Johnson v. Dockery, 222 Ga. 569, 150 S.E.2d 921. In the absence of any meritorious defense being set forth in the affidavit accompanying the motion, and the pleadings in th......
-
Jordan v. Clark
...to open a default for reasons which fall short of a reasonable excuse for the negligent failure to answer. Also, see Johnson v. Dockery, 222 Ga. 569 (150 SE2d 921); Snow v. Conley, 113 Ga. App. 486 (148 SE2d 484); Montgomery v. Dixon, 117 Ga. App. 736 (161 SE2d 2. The second enumeration ass......
-
Alex v. Parkway-Boulevard Corp., PARKWAY-BOULEVARD
...that the facts in appellant's motion fell short of making a case where the court would have a discretion. See also Johnson v. Dockery, 222 Ga. 569, 570, 150 S.E.2d 921 (1966) where the court held that "petitioner set forth neither any fact to show a meritorious defense (to the default) nor ......
-
Muscogee Realty Development Corp. v. Jefferson Co.
...to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. E.g., Johnson v. Dockery, 222 Ga. 569, 150 S.E.2d 921 (1966); Houston v. Lowes of Savannah, 136 Ga.App. 781, 222 S.E.2d 209 The Court of Appeals affirmed the superior court's denia......