Muscogee Realty Development Corp. v. Jefferson Co.
| Citation | 252 Ga. 400,314 S.E.2d 199 |
| Decision Date | 04 April 1984 |
| Docket Number | No. 40558,40558 |
| Parties | MUSCOGEE REALTY DEVELOPMENT CORPORATION et al. v. JEFFERSON COMPANY. |
| Court | Supreme Court of Georgia |
Carlton M. Henson II, Kenneth M. Henson, Jr., Henson & Henson, P.C., Columbus, for Muscogee Realty Development Corp. et al.
Lee R. Grogan, Grogan, Rumer & Taylor, Columbus, for Jefferson Co.
This case, Muscogee Realty etc., Corp. v. Jefferson Co., 168 Ga.App. 673, 310 S.E.2d 245 (1983), is here on certiorari. The question for decision is whether the trial judge abused his discretion in refusing to allow two or three codefendants to open a default created by the fact that their answers to the plaintiff's complaint were filed 31 days, rather than 30 days, after service of the complaint. See OCGA §§ 9-11-12(a) §§ 81A-112 and 9-11-55(b) (Code Ann. § 81A-155). The Court of Appeals held that the trial judge did not abuse his discretion in striking these defendants' responsive pleadings because of this default. These are the facts:
The plaintiff, the Jefferson Company, is a real estate brokerage firm, which is suing the Gentry Company, another real estate brokerage firm, as well as a Dr. Chastain and the Muscogee Realty Development Corporation (which is owned by Dr. Chastain). The plaintiff alleges that it was the procuring cause of the sale of a $1,110,000 parcel of realty to defendants Chastain and Muscogee Realty and that it is therefore due a reasonable commission in the amount of $88,000.
All three of the defendants were initially represented by the same attorney. However, defendants Chastain and Muscogee Realty were served on September 4, 1981, whereas defendant Gentry was not served until September 9. Because service on defendants Chastain and Muscogee Realty had been acknowledged by defendant Chastain, the complaints against them did not reflect the date of service. All three of the complaints were forwarded to the defendants' attorney, who erroneously assumed that all three of the defendants had been served on September 9. The defendants' attorney testified that a secretary in his office who might have caught this error was away at the time. In any event, all of the complaints were answered on October 6, which was one day after the statutory 30-day period with respect to Chastain and Muscogee Realty and three days prior to the close of the period with respect to Gentry.
The defendants' defense was that the parties' agreement was that the sale of the property was to net the seller $1.2 million, and, if it did not, no commission was to be paid.
After the opening statements of the parties' attorneys at the commencement of the trial, the trial judge noticed that the answers of defendants Chastain and Muscogee Realty were filed one day late. The trial judge therefore declared these defendants in default. The plaintiff voluntarily dismissed defendant Gentry from the suit, thereby avoiding operation of the rule that if the alleged liability of multiple defendants is joint, a default judgment should not be entered against a defaulting defendant or defendants until the nondefaulting defendant or defendants have either defaulted or been adjudicated liable to the plaintiff. Stasco Mechanical Contractors v. Williamson, 157 Ga.App. 545, 278 S.E.2d 127 (1981). The defaulting defendants here paid costs the following day and sought to open the default. However, the trial judge refused to allow it. Our review of the transcript leads us to conclude that the reason the trial judge refused to allow the default to be opened was that the defaulting defendants had not shown "excusable neglect" for the late filing of their answers.
The applicable statutory provision is OCGA § 9-11-55(b) (Code Ann. § 81A-155), which provides: As recognized by the Court of Appeals, this Code section allows a prejudgment default...
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