Parker v. Branan, 40203
| Decision Date | 08 July 1963 |
| Docket Number | No. 40203,No. 1,40203,1 |
| Citation | 108 Ga.App. 229,132 S.E.2d 556 |
| Parties | Carl PARKER v. William S. BRANAN |
| Court | Georgia Court of Appeals |
Frank G. Wilson, Carl J. Wilson, Jr., Macon, for plaintiff in error.
John M. Hancock, Jr., Macon, for defendant in error. Syllabus Opinion by the Court
1. Code Ann. § 110-404 refers to opening defaults before final judgment, and has no application where a final judgment has in fact been entered. Burger v. Dobbs, 87 Ga.App. 88, 90, 73 S.E.2d 75.
2. Under Code Ann. § 110-401 the right of the defendant to open a default judgment within 15 days after the appearance day upon payment of costs is absolute; any judgment entered prior thereto is premature and must be set aside where a proper motion is made and the costs paid within such 15 day period. Potts v. Smith Grain Co., 99 Ga.App. 270, 274, 108 S.E.2d 285.
3. Parker, the defendant, failed to file any defenses prior to the default judgment entered against him on the 31st day after service, or within the 15 day period allowed for the opening of defaults. On the 21st day he moved to set aside the default judgment and be allowed to file his defenses, and he paid the accrued costs. His contention is that the premature entry of the judgment tolled the running of the 15 days, and that he is entitled to 15 days after the judgment was set aside, whereas the trial court, in the same order in which he set aside the first judgment, expressed the opinion that no right existed to open the default at that stage since no providential cause had been shown, but instead entered up a second default judgment in all respects similar to the first, after striking the answer and defensive pleadings filed during the interim period. The fact that the latter order is dated five weeks after the filing of the motion is of no significance, since a default does not run while the motion to set aside is under consideration by the judge. Averback v. Spivey, 122 Ga. 18(4), 49 S.E. 748. But the 15 days in which to open the default (whether or not the procedure also involves setting aside a judgment prematurely entered) is not affected by the entry of a judgment. As was pointed out in Potts, supra: 'If the motion in this case had been made from one to three terms after the default term, the judgment of this court would certainly be different, but in this case the motion to set aside was made within 15 days, which is a period given to the...
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Florez v. State Ex Rel. Altman (two Cases).
...is premature and must be set aside where a proper motion is made and the costs paid within such 15 day period.Parker v. Branan, 108 Ga.App. 229(2), 132 S.E.2d 556 (1963). In Parker, the defendant failed to take any action within the 15–day period, even though a premature judgment had been e......
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Tselios v. Sarsour
...period, the appellants need only have filed their answer and paid costs [;] no court action was required[.]"); Parker v. Branan, 108 Ga.App. 229, 229 (2), 132 S.E.2d 556 (1963) (right to open default within 15-day period is "absolute").3 The rules of evidence apply in summary judgment proce......
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Johnson v. Cook, 48433
...cause or excusable neglect or in 'a proper case') no longer applied. Burger v. Dobbs, 87 Ga.App. 88, 90, 73 S.E.2d 75; Parker v. Branan, 108 Ga.App. 229, 132 S.E.2d 556; Mathews & Co. v. Bishop, 106 Ga. 564(1), 32 S.E. The applicability of the distinction above mentioned has been set forth ......
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Camelback Management Co., Inc. v. Phoenix Periodicals, Inc., A89A1183
...pleadings. Accord Whitsett v. Hester-Bowman Enterprises, 94 Ga.App. 78(1), 79-80, 93 S.E.2d 788 (1956), and Parker v. Branan, 108 Ga.App. 229(2), 132 S.E.2d 556 (1963) (both of which were decided under the predecessor to the present statute, former Code § 4. For the above reasons, we hold t......