Newman v. Greer

• Decision Date: 07 February 1974
• Docket Number: No. 48883,No. 2,48883,2
• Citation: 131 Ga.App. 128,205 S.E.2d 486
• Parties: Osborne N. NEWMAN v. Curtis J. GREER et al
• Court: Georgia Court of Appeals

Page 486

205 S.E.2d 486

131 Ga.App. 128

Osborne N. NEWMAN v. Curtis J. GREER et al.

No. 48883.

Court of Appeals of Georgia, Division No. 2.

Feb. 7, 1974.

Rehearing Denied March 5, 1974.

Nicholson, Fleming & Blanchard, Jim Blanchard, Jr., Augusta, for appellant.

Fulcher, Hagler, Harper & Reed, N. William Pettys, Jr., Augusta, for appellees.

Syllabus Opinion by the Court

HALL, Presiding Judge.

Following a judgment entered upon a jury verdict for Mr. and Mrs. Greer in their suits against Osborne N. Newman for personal injury to Mr. Greer, Newman filed a document designated 'Motion to Vacate and Set Aside Judgment,' the asserted ground for which was that he and his former attorney were absent from the trial because the attorney had withdrawn and Newman himself had received no notice of the trial date. The motion stated in conclusory fashion that Newman had a good defense which would have been presented had he received notice of trial. The trial judge construed this document as a motion for new trial under Code Ann. § 81A-160(c), and denied the motion, ruling that before his withdrawal Newman's attorney had notice that the case was set for trial at the spring term of 1973; that Newman had failed to exercise diligence in his own behalf to obtain counsel between his attorney's withdrawal in January and the trial in June; and that Newman had shown no meritorious defense. Newman appeals the denial of his motion, urging among other things that his motion was misconstrued and that he wishes to rely upon Code Ann. § 81A-160(e) allowing a complaint in equity to set aside a judgment.

Our first task is to decide how to characterize Newman's motion. At the outset it should be noted that Osborne N. Newman died in July 1973, and his personal representative, Joseph E. Newman, is the actual Appellant here.

Code Ann. § 81A-160(f) provides that a complaint in equity to set aside a judgment 'must' proceed by complaint and summons. (Emphasis supplied.) There was no such proceeding here, and therefore we must conclude that appellant proceeds under something other than Code Ann. § 81A-160(e), regardless of his assertion to the contrary. Moreover, appellant's bringing his appeal to this court and not to the Georgia Supreme Court is in itself inconsistent with his attempted invocation of subsection (e) (see Lewis v. Lewis, 124 Ga.App. 579, 184 S.E.2d 672), as we would not have jurisdiction of an appeal from the denial of equitable relief.

Nor is appellant's motion correctly considered to be a motion to set aside under Code Ann. § 81A-160(d), which requires a nonamendable defect appearing upon the face of the pleadings or record. Where the matter asserted to be error, such as a defect in notice, does not appear upon the face of the record but is developed by the evidence (as here), the judgment may not be set aside under this section. Miller v. Miller, 230 Ga. 777, 199 S.E.2d 241. Cf. Touchton v. Stewart, 229 Ga. 303, 190 S.E.2d 912. The trial judge correctly ruled that appellant's motion was for a new trial under Code Ann. § 81A-160(c). Stamps Tire Co. v. Powers, 104 Ga.App. 860, 123 S.E.2d 203. See Wilkes v. Ricks, 126 Ga.App. 266, 190 S.E.2d 603.

Considering the merits of the motion, appellant grounds his position urging reversal in Code Ann. § 81A-140(c) requiring that 'notice' must be given the parties, and upon oral argument he takes the position that 'notice' means notice of the actual day upon which the trial will be held. He argues additionally that the informal notifications which were given to Newman's relatives as discussed below, cannot constitute compliance with the notice requirement.

The record reflects no evidence whatever that appellant or his representatives were notified by any means of the actual trial day. The affidavit of the clerk of court indicated that it was not his practice to send copies of the court calendar to parties, as distinguished from their counsel, although the record contained a copy of the letter of withdrawal of Newman's former attorney. It is not necessary for us to reach the question whether in such circumstances there is a duty to notify the party himself through the same means which would be used to notify counsel (although such a rule appeals strongly to concepts both of fairness and of common sense), because the record compels our conclusion on a different ground.

The record shows that suit had been filed by the Greers on August 23, 1968, for damages arising out of a 1967 incident in which appellant allegedly failed to control his automobile upon driving into the parking lot of a convenience store, and ran into Mr. Greer, a pedestrian, pinning him to a door frame. Shortly after the filing of suit, the Greers by amendment added a court to their complaint adding L. A. Newman as a defendant and seeking to set aside deeds from Newman to L. A. Newman of all of his real property, as fraudulent conveyances. The trial judge on November 19, 1972 issued an order finding that the conveyances were made for the purpose of defrauding the Greers and hindering and delaying the collection of any debts due to them, and that the conveyances were made without consideration and should be set aside. The record further reflects that the case, assigned for trial, was continued four times by Newman, and upon continuance from the October 1972 trial term the trial judge peremptorily ordered that the case stand ready for trial at the next succeeding term unless continued for legal cause...