Kemp v. North Georgia Petroleum Co., 42705

• Decision Date: 25 May 1967
• Docket Number: No. 42705,No. 2,42705,2
• Citation: 115 Ga.App. 783,156 S.E.2d 206
• Parties: Eddie KEMP v. NORTH GEORGIA PETROLEUM COMPANY
• Court: Georgia Court of Appeals

Page 206

156 S.E.2d 206

115 Ga.App. 783

Eddie KEMP v. NORTH GEORGIA PETROLEUM COMPANY.

No. 42705.

Court of Appeals of Georgia, Division No. 2.

May 25, 1967.

Robert E. Andrews, Gainesville, for appellant.

Hammond Johnson, Jr., Gainesville, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

A suit on account in substantially the Jack Jones form (Ga.L.1847, p. 490; Code Ann. Title 81, Book 23, pp. 2, 3; Fulton Air Service, Inc. v. Lake, 104 Ga.App. 417, 420, 121 S.E.2d 799) was brought in the Superior Court of Hall County on July 20, 1964, with the prayer for process requiring the defendant to be and appear in the next term to answer, and process was annexed by the clerk requiring the defendant to answer 30 days after service. The suit and process was served on the defendant July 22, 1964. A judgment by default in favor of plaintiff against the defendant was signed by the trial judge on September 4, 1964, and filed September 8, 1964. On the day the judgment was filed, and after the time required by the process for answering and after the expiration of the 15 days within which the automatic default could have been opened by the payment of cost and the filing of an answer (Code § 110- 401) the defendant then filed an answer. Subsequently on October 6, 1964, defendant filed a motion to vacate this judgment on the grounds that it was prematurely entered which motion was sustained on November 24, 1964. The answer of defendant was then stricken on the grounds it was filed too late and another judgment by default entered against the defendant. Thereafter a levy was made and claim filed and several garnishments issued and answers of indebtedness filed. In November, 1965, the defendant filed a petition to set aside this second judgment on the grounds there was no prayer for judgment in the suit on account, that the suit on account contained a defective prayer for process and the process issued was unauthorized and in said petition to set aside the return of service on the suit on account was traversed. The trial court on December 14 signed an order making certain preliminary findings and rulings, which order was filed December 17, 1965. The order dated February 28, 1966, filed March 1, 1966, after stating certain facts as to the record in said case the trial judge made the following ruling:

'The court concludes that the acts and procedures effected by the plaintiff in this litigation had the same effect as a general appearance and resulted in...