One Hour Valet of Peachtree, Inc. v. Kamor
| Decision Date | 05 May 1961 |
| Docket Number | No. 38782,No. 2,38782,2 |
| Citation | 103 Ga.App. 618,120 S.E.2d 130 |
| Parties | ONE HOUR VALET OF PEACHTREE, INC. v. Manuele KAMOR |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The right of a defendant in the Civil Court of Fulton County to set aside a default judgment within 5 days after its rendition and file an answer and other defensive pleadings in the reopened case includes the right to file a demand for a jury trial at that time.
Manuele Kamor Filed his petition in the Civil Court of Fulton County against One Hour Valet of Peachtree, Inc. on August 23, 1960. No defensive pleadings having been filed, a default judgment was entered against the defendant on September 26, 1960. On September 27, 1960, on motion of the defendant, the trial court passed an order vacating the default judgment, and further stating: 'The defendant is allowed to file its answer and other defensive pleadings at this time.' Pursuant to said order the defendant on that date filed its answer and a demand for a jury trial. Subsequently, the trial court sustained the plaintiff's motion to strike the defendant's demand for jury trial on the ground that such demand was defective since it was not filed on or before the date on which the defendant was required to appear in court in response to the process attached, namely, September 5, 1960. The case proceeded to trial without a jury, and the court, after hearing evidence therein, rendered a judgment in favor of the plaintiff in the amount of $343. Error is assigned on the denial of the defedant's motion for new trial as amended and on the antecedent order striking the defendant's demand for a jury trial.
Arnall, Golden & Gregory, H. Fred Gober, Atlanta, for plaintiff in error.
Julian E. Gortatowsky, Willingham & Gortatowsky, Atlanta, for defendant in error.
The statute to be construed in this case provides that the defendant 'may file a written demand for a trial by jury on or before the day upon which he is required to appear in court in response to the proceedings and upon such defendant's failure thereupon to demand a trial by jury, he will be held to have waived the same.' (Italics ours.) Ga.L.1913, p. 145 as amended, Ga.L.1935, pp. 500, 503. Under Section 36 of the statute mentioned above, it is the duty of the defendant to appear and responed to the suit brought against him on the first day of the term to which the action was brought(i. e., the first Monday of the month which falls not less than 12 days from the filing date). However, under Section 46 of the Act (Ga.L.1913, p. 145 as amended by Ga.L.1918, p. 351) the defendant against whom a default judgment has been entered has the right to have such default opened on the filing of an affidavit stating that he has, as he is advised and believes, a good defense, and that he is not seeking to open the default for delay only, and the judgment rendered therein may be set aside at any time within 5 days from the rendition of such judgment. This right of the defendant is an absolute one in that the only discretion allowed the trial court is the imposition of double costs in the event it should find the default is opened for delay only. Washington Nat. Ins. Co v. Edwards 102 Ga.App. 381, 116 S.E.2d 514. Thus, while it is the duty of the defendant to appear in court on or before the first Monday of the month which falls not less than 12 days from the filing of the suit, he may as a matter of right upon the filing of the proper affidavit and payment of costs wait until 5 days after a default judgment has been rendered against him before he appears in response to the proceeding and files his defensive pleadings.
Counsel for the defendant in error insists that the statute in question is plain and unambiguous in that it sets a date certain on which the demand for jury trial must be filed, and that failure to so file constitutes a waiver thereof. We agree with this contention where a case is proceeding regularly and the defendant has appeared and filed defensive pleadings. However, the instant case involves a default judgment which was opened by the defendant within the time allowed, thereby giving the defendant the right to file an 'answer and other defensive pleadings.' This clearly reopens the case to the extent of allowing the defendant to file all pleadings which he would have been allowed to file on the date the answer was required in the first instance. We think the term 'and other defensive pleadings' is broad enough to include the right to demand a...
To continue reading
Request your trial
-
Fleming v. State, 52720
...in the instant case, the right is ordinarily lost unless the demand is made within the time prescribed. One Hour Valet of Peachtree, Inc. v. Kamor, 103 Ga.App. 618, 621, 120 S.E.2d 130. Under the circumstances of this case, where the defendant was represented at the time his case was called......
-
Harvard Trust Co. v. Bray
...any defense not explicitly precluded by a valid condition of the order permitting reopening. One Hour Valet of Peachtree, Inc. v. Kamor, 103 Ga.App. 618, 620, 120 S.E.2d 130, 133 (1961); Forstman v. Arluck, 71 App.Div.2d 847, 848, 419 N.Y.S.2d 169, 171 (1979) (by implication) (mem.); Pollac......
-
Williams v. Leonard Heating & Air Conditioning Co., Inc., 51281
...5 Ga. 194(8); Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979; Mills & Williams v. Ivey, 3 Ga.App. 557(4), 60 S.E. 299; One Hour Valet v. Kamor, 103 Ga.App. 618, 620, 120 S.E.2d 130; Stamps Tire Co. v. Hartford, 115 Ga.App. 326(2), 154 S.E.2d 656; Sou. R. Co. v. Beach, 117 Ga. 31(2), 43 S.E. 413; H......
-
Brumbalow v. State, 47870
...it may be made at any time before the case is called for trial, or upon the call for trial. (cit.)' One Hour Valet of Peachtree v. Kamor, 103 Ga.App. 618, 621, 120 S.E.2d 130, 133.' Stansell v. Fowler, 113 Ga.App. 377, 381, 147 S.E.2d 793, 796. It does not appear from the record here that t......