R. H. Macey & Co. v. Chancey

• Decision Date: 27 September 1967
• Docket Number: 2,No. 42712,3,Nos. 1,42712,s. 1
• Citation: 116 Ga.App. 511,157 S.E.2d 758
• Court: Georgia Court of Appeals
• Parties: R. H. MACEY & COMPANY, Inc. v. Mrs. John CHANCEY

Page 758

157 S.E.2d 758

116 Ga.App. 511

R. H. MACEY & COMPANY, Inc. v. Mrs. John CHANCEY.

No. 42712.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 27, 1967.

Rehearing Denied Oct. 17, 1967.

O. J. Tolnas, Athens, for appellant.

James W. Paris, G. Wesley Channell, Winder, for appellee. Syllabus Opinion by the Court

PANNELL, Judge.

R. H. Macey & Company, Inc., doing business as Davison-Paxon Company, brought suit on account against Mrs. John Chancey in the Superior Court of Barrow County with a prayer for judgment for principal and interest and that process issue requiring that defendant be and appear at the next term of said court to be held in and for said county to answer petitioner's complaint. The process attached to the petition required the defendant to answer within 30 days after the entry of the service thereof. The return shows the petition and process were served October 6, 1966, shortly before the November term of said court which convened the first Monday in November (November 7). Judgment by default without a jury verdict was rendered against the defendant on December 6 during the November term. Thereafter on January 26, 1967, and during the November term, the defendant filed her motion to set aside the judgment and open the default, alleging as grounds therefor that defendant was not conversant with the laws pertaining to time within which to file answer and other defensive pleadings, was confused by the wording on the process served upon her, and thought that she only had to appear at the next (February) term of court in order to make timely answer; and that, in any event, defendant normally would have consulted an attorney during October, 1966, or early November and within the thirty-day period allowed for filing defensive pleadings, but she has been seriously ill and under a doctor's care since the summer of 1966, has a husband who also was ill and under a doctor's care, and who had only recently been hospitalized again, and on October 28, a son was involved in a serious automobile accident, and that the combination of the foregoing conditions and events prevented defendant from conducting any of her business or personal affairs in the manner in which they normally otherwise might have been conducted. No attack was made on the prayer for process or the process.

At the hearing on the motion on January 28, 1967, the only evidence offered, testimony of defendant, was substantially as follows: That she was served on October 7, 1966, but didn't do anything right then; that she was under the care of a doctor at that time and her husband always looked after things like that and he was sick; that he normally took care of things; that her husband had a bad heart condition and the doctor said he could go at any time; that he also had emphysema and glaucoma and would be operated on 'this coming Tuesday' for the glaucoma; that her husband had not been to work for some time, approximately three years or longer; that she had 'high hernia' and at times when she ate she would choke and the doctor was treating her for it now and that the hernia tended to make her nervous and that she had been under the doctor's care since 'last July' up to the present time; that she had worked up until July 15, but had not worked since that time and that she was in the hospital from the 16th of July until the 29th; that her son had an accident in October after she was served with the suit and that she was not familiar with the rules of law and guessed she was ignorant about things like that; that after she was served with the suit she tried to keep it quiet on account of her husband's condition, and when her son had the accident she tried to keep her husband from knowing about the accident but couldn't; that she read the paper served upon her and thought she could take care of the matter before February when court started and that the reason she thought that was because the papers said February term of court on the back. In answer to the question 'Is it safe to say that if you had not been ill and under the care of a doctor and your husband had not been ill and under the care of a doctor, that you normally would have been working and attending to your business affairs?' The defendant answered 'Yes and no. My husband always looked after any of my business affairs when he was able.' Held:

1. 'It is a well-settled principle of law that courts of record retain control over their orders and judgments during the term at which they are made, and, in the exercise of a sound discretion, may revise or vacate them, and such discretion will not be controlled unless it is manifestly abused. Methodist Episcopal Church, South Inc. v. Decell, 60 Ga.App. 843, 849, 5 S.E.2d 66; Bowen v. Wyeth, 119 Ga. 687, 46 S.E. 823; East Side Lumber, etc., Co. v. Barfield, 193 Ga. 273, 276, 18 S.E.2d 492; International Agricultural Corp. v. Law, 40 Ga.App. 756, 151 S.E. 557; Whitlock v. Wilson, 79 Ga.App. 747, 54 S.E.2d 474; Dover v. Dover, 205 Ga. 241, 53 S.E.2d 492; Tyler v. Eubanks, 207 Ga. 46, 60 S.E.2d 130; Hunter v. Gillespie, 207 Ga. 574, 63 S.E.2d 404. But the power to so deal with a judgment is not an unlimited or arbitrary power, but a discretionary one. It is purely a legal discretion. Grogan v. Deraney, 38 Ga.App. 287, 290, 143 S.E. 912; Cahoon v. Wills, 179 Ga. 195, 196, 175 S.E. 563; Cofer v. Maxwell, 201 Ga. 846, 848, 41 S.E.2d 420. As said in the Cahoon case and repeated in the Cofer case: 'The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice. " Burger v. Dobbs, 87 Ga.App. 88, 91, 73 S.E.2d 75, 78.

2. 'At any time before final judgment, the judge, in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.' Code § 110-404 as amended by Ga.L.1946, pp. 761, 778.

3. 'While the Code, § 110-404, as amended, gives to the trial judge a broad discretion in setting aside a default judgment, this does not mean that he may act arbitrarily but that he must exercise a sound and legal discretion. He may not open a default capriciously or for fanciful or insufficient reasons.' Davison-Paxon Co. v. Burkart, 92 Ga.App. 80, 83, 88 S.E.2d 39, 42.

4. Code § 110-404, supra, however, has no application to the motion here to set asid a final judgment rendered after default (Mathews & Co. v. Bishop, 106 Ga. 564(1), 32 S.E. 631; Graham v. Niagara Fire Ins. Co., 106 Ga. 840, 845, 32 S.E. 579; Adams v. Overland-Madison Co., 27 Ga.App. 531(2), 109 S.E. 413); neither does is impair 'the plenary control of the court over orders and judgments during the term at which they are rendered. This inherent power of the court extends to all orders and judgments save those which are founded upon verdicts'. East Side Lumber, etc., Co. v. Barfield, 193 Ga. 273, 277, 18 S.E.2d 492, 495.

5. 'The rule is not as strict before final judgment as it is after such final judgment has been entered * * *' and 'The discretion of the trial court to open a default is greater before final judgment than after, and after judgment the discretion applies only to judgments entered within the same term of court and, even then, not to judgments which are founded on jury verdicts. For that reason cases dealing with motions to set aside final judgments should not be considered in applying Code Ann. § 110-404, which relates only to opening defaults before final judgment.' Haynes v. Smith, 99 Ga.App. 433, 436, 108 S.E.2d 772, 775. With equal logic it might be said that cases where there is only a default and no final judgment should not be considered in cases, such as the present one, where a final judgment has been entered.

6. This court, in Haynes v. Smith, supra, where there was no final judgment, ruled that 'Cases dealing with the abuse of discretion by the trial court must necessarily stand on their own facts, and under the specific facts of this case, including the contradictory wording of the process and the petition backing, the plaintiff's unfamiliarity with legal processes, her lack of a telephone, the distance from her lawyer's office, and also the exigencies imposed upon her by having to work at night and take care of her totally incapacitated son during the day together with her own resulting mental and physical strain, seem to this court sufficient to justify the trial court in finding that her failure to consult a lawyer until shortly before the commencement of the November term of court constituted excusable neglect rather than gross negligence.' There was an intimation in that case that if a final judgment had been entered, a different result would have been reached, and we agree. The evidence in the present case shows that the defendant's sole reason for not filing pleadings on time was the fact that 'February term' appeared on the back of the petition and process and that because thereof she thought she had until then to take necessary action. While she testified about the sickness of herself and her husband, and the injury to her son, she nowhere in her testimony claims these as reasons for delay. The process attached to the petition plainly and clearly informed the defendant when to answer. The backing on the petition and process which is customarily made refers to the term of court at which the case would...