Lanier v. Foster
| Decision Date | 10 September 1974 |
| Docket Number | No. 49445,No. 1,49445,1 |
| Citation | 133 Ga.App. 149,210 S.E.2d 326 |
| Parties | Jefferson G. LANIER, Sr., et al. v. Janice L. FOSTER et al |
| Court | Georgia Court of Appeals |
James W. Lewis, Atlanta, for appellants.
Savell, Williams, Cox & Angel, Edward L. Savell, Elmer L. Nash, Atlanta, for appellees.
Syllabus Opinion by the Court
Three questions are presented: (1) Must the adversary litigant be notified before the court appoints a guardian ad litem for a minor? (2) What is required to accomplish legal service upon a minor defendant before such minor can be declared in default? (3) How broad a discretion is vested in a trial judge under Code Ann. § 81A-155(b) to authorize him to determine 'from all the facts . . . that a proper case has been made for the default to be opened'?
Jefferson G. Lanier, Jr., by his father as next friend, joined with his father individually to sue Janice Lynn Foster, an infant, and her uncle, Roy Thomas Rooker, for injuries allegedly sustained by young Lanier when struck in the eye by a stick negligently wielded by the infant defendant while plaintiff minor was an invitee upon Rooker's premises. The record shows that on April 22, 1972, the date of the event, plaintiff was nine years of age and defendant child was twelve years old.
The infant defendant was served personally in Fulton County on March 13, 1973. Although the complaint alleged Janice Lynn Foster to be an infant, and added that a guardian ad litem should be appointed and served with process on her behalf, no move was made towards having this done. This complaint was not served upon the infant's father or mother. Rooker, the adult defendant, was personally served on March 15, 1973, by second original process in his residence county. He promptly forwarded the complaint to the adjuster for the Unigard Mutual Insurance Company which carried his homeowners coverage, this being the individual with whom he had dealt on this claim. No defensive pleadings were filed within the 30 days statutory period.
On June 6, 1973, both defendants made their first court appearance through their attorney. After making payment of all accrued court costs both defendants filed a single motion under Code Ann. § 81A-155(b) captioned 'Defendants' Motion to Open Default Prior to Judgment.' In their motion the defendants set forth separately the facts on which their joint motion was based. Additionally, a separate motion for appointment of a guardian ad litem was made by the minor defendant. This independent motion was granted with her father being appointed, the court directing him to accept service and file an answer for her. This order was entered without notice to plaintiffs.
The joint motion stated the activities of the insurer, Unigard Mutual Insurance Company, after Rooker had forwarded the suit papers to the adjuster. This individual resigned and failed to comply with the company regulations to report receipt of the complaints. A regular audit by the insurer resulted in a discovery of the suit papers on May 4, 1973, only a few days past the time when the costs could have been paid and the default opened as a matter of right under Code Ann. § 81A-155(a). The motions by defendants to open the default followed promptly thereafter.
The motion included separate answers for each defendant setting out meritorious defenses. This pleading further pointed out it was necessary for the court to appoint a guardian ad litem for the minor defendant pursuant to the provisions of Code Ann. § 81A-117(c) with court authorization for defensive pleadings to be filed on her behalf. The motion also stated that 'The default in this case occurred as a result of a providential cause preventing the filing of answers, or in the alternative, as a result of excusable negligence, or that considering all the facts, a proper case has been made for the default to be opened.'
In response to a rule nisi calling upon plaintiffs to show cause why the default should not be opened as to both defendants, the plaintiffs moved for reinstatement of the default as to the minor, contending they were entitled to notice and hearing before a guardian ad litem was appointed and that plaintiffs were entitled to a default as against both defendants. In an order entered March 5, 1974, the defaults as to both defendants were opened. The judgment recited the factual background and concluded that 'The court in the exercise of its discretion has determined that a proper case has been made for the default to be opened and that the interest (sic) of truth and justice require that the default be opened.' (R. 56). The instant appeal followed with the trial judge granting the necessary immediate review certificate.
1. The assertion the trial court erred in appointing a guardian ad litem for the minor defendant without affording plaintiffs an opportunity to be heard is without merit. Code Ann. § 81A-117(c) provides that 'The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.' The selection of the individual to represent the child's interest is a matter which peculiarly lends itself to the discretion of the trial court and is not ordinarily the type of matter in which the plaintiff, the infant's adversary, has a legitimate interest. Code Ann. § 81A-117(c) does not contemplate an adversary hearing. As this court has previously pointed out, 'It is . . . clear that Subsection 17(c) of the Act intended that the trial court be given discretion in the matter of appointment of a guardian ad litem for it provides that the court shall appoint or make such order as he deems proper for the protection of the minor.' O'Neil v. Moore, 118 Ga.App. 424, 428, 164 S.E.2d 328,...
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