Sanders v. American Liberty Ins. Co., 25469
| Decision Date | 04 December 1969 |
| Docket Number | No. 25469,25469 |
| Citation | 225 Ga. 796,171 S.E.2d 539 |
| Parties | Maggie SANDERS v. AMERICAN LIBERTY INSURANCE COMPANY. |
| Court | Georgia Supreme Court |
Jack J. Helms, Homerville, for appellant.
William A. Zorn, Jesup, for appellee.
Syllabus Opinion by the Court
Certiorari was granted in the present case to review a holding of the Court of Appeals that the trial court erred in refusing to exercise a discretion in ruling upon the motion of American Liberty Insurance Company to open a default and permit the filing of defensive pleadings.
The motion to open default alleges that two complaints were filed against the movant: one by Z. B. Sanders bearing 'Civil Action No. 3496' and the other by Maggie Sanders bearing 'Civil Action No. 3497.' It was further alleged that both complaints were served by the deputy sheriff of Atkinson County upon 5/8 Smith, an insurance broker, through whom a policy of insurance had been issued to Z. B. Sanders, that said 5/8 Smith was under the misapprehension that there was only one suit and that one complaint was for his office use and that accordingly he only forwarded to the movant the complaint in Civil Action No. 3496, that upon receipt of said complaint movant referred the same to its attorney who filed defensive pleadings in that action, that on January 23, 1969, movant learned for the first time of Civil Action No. 3497 and that more than 45 days had expired and the same was in default, and that said case is in default through no fault of the movant's but solely through the fault of the aforesaid 5/8 Smith who failed to forward notice of said complaint to movant. Hold:
Pretermitting the question of whether or not the movant alleged in such motion a meritorious defense to said complaint, yet under Code Ann. § 81A-155(b) the facts alleged to authorize the opening of the default for providential cause, excusable neglect or to show otherwise a proper case to have the default opened presented nothing which would authorize the trial court to exercise a discretion in the premises. In Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245, referring to then Code § 5072 (later Code § 110-404 and now Code § 81A-155(b)), it was held: ...
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...202, 206(2)(a), 170 S.E.2d 249 (1969); rev'd on the ground that there was no reasonable excuse for the failure to file the answer, 225 Ga. 796, 171 S.E.2d 539. The use merely of the names given defenses, such as "lack of negligence, comparative negligence, and last clear chance," more so wh......
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Stuart v. State, 45833
...as is possible, yet the judge did not exercise any discretion here, and accordingly a new trial is required. Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. The error enumerating the denial of the motion for new trial based on this ground is 2. During the trial the prosec......
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...for that of the trial judge. It is urged that this court is bound by the expressions of the Supreme Court in Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539. We disagree for two reasons: (1) No two cases of this type are exactly alike, thus each one must be viewed independ......
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Broadaway v. Thompson
...95, 96, 41 S.E. 245, decided in 1902; Green v. Whitehead, 204 Ga. 274, 276, 49 S.E.2d 527, decided in 1948; and Sanders v. American Liberty Ins. Co., 225 Ga. 796, 171 S.E.2d 539, decided in 1969. The only reasonable construction of the statute is that adopted by the Supreme Court of Georgia......