Sidwell v. Sidwell
Decision Date | 02 April 1999 |
Docket Number | No. A99A0773.,A99A0773. |
Citation | 515 S.E.2d 634,237 Ga. App. 716 |
Parties | SIDWELL et al. v. SIDWELL et al. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Moulton & Massey, Terry N. Massey, Kristine M. Tarrer, Conyers, for appellants.
Gandy, Rice & Sundberg, Leon S. Gandy, Jr., Atlanta, for appellees.
HAROLD R. BANKE, Senior Appellate Judge.
John L. Sidwell and Dorothy B. Sidwell (hereinafter the "Estate") brought suit against their son, Jim A. Sidwell and his wife, Cynthia Sidwell for the unpaid balance due on a $50,000 promissory note executed in 1992.1 The Sidwells failed to timely respond to the complaint.2 In their untimely answer, the Sidwells pleaded the defense of insufficient service of process based on the fact that the Summons stated Gwinnett County State Court instead of Gwinnett County Superior Court. However, the case caption on the complaint stated "IN THE SUPERIOR COURT OF GWINNETT COUNTY" and on the Sheriff's Entry of Service, the box was checked next to Superior Court.
On the same day they filed their untimely answer, the Sidwells moved to dismiss the complaint or in the alternative to open default. In separate affidavits in support of their motion to open default, both Cynthia Sidwell and Jim Sidwell admitted that they had been served with the lawsuit. According to Cynthia Sidwell, they did not answer the complaint because they did not want to cause John Sidwell any emotional distress.
After finding that the summons was void, the trial court dismissed the Estate's complaint. The Estate then commenced this appeal. Held:
1. The Estate contends that the trial court erred in granting the Sidwells' motion to dismiss. The Estate claims that it was deprived of a judgment to which it was entitled. Our review of this procedural issue is de novo. See State v. Tate, 208 Ga.App. 117, 120, 430 S.E.2d 9 (1993).
By failing to timely respond to the complaint, the Sidwells waived the defense of insufficiency of process. Stout v. Signate Holding, 184 Ga.App. 154, 155(3), 361 S.E.2d 36 (1987) ( ); see McDonough Contractors v. Martin & DeLoach Paving &c., 183 Ga.App. 428, 429(1), 359 S.E.2d 200 (1987) ( ); Brumit v. Mull, 165 Ga.App. 663, 665(2), 302 S.E.2d 408 (1983); see OCGA § 9-11-12(h).
The Sidwells' argument that the process was void is without merit even had that defense not been waived. Under similar facts where the complaint and sheriff's entry of service designated the correct court but the summons did not, we found that the irregularity amounted to an amendable defect. Holt v. Scott, 226 Ga.App. 812, 817(4), 487 S.E.2d 657 (1997). The defect here was similarly amendable and did not render the process void. Id.; compare Gandy v. Brown, 173 Ga.App. 740, 741, 327 S.E.2d 850 (1985) ( ).
When this case lapsed into default after the expiration of the 15-day statutory grace period, the Estate became entitled to verdict and judgment by default as if every item and paragraph of its complaint was supported by proper evidence. OCGA § 9-11-55(a). Instead, the trial court dismissed the complaint. Although OCGA § 9-11-55(b) empowers a trial court with broad discretion to open default, that discretion is not without limit. First Union Nat. Bank v. Floyd, 198 Ga.App. 99, 101(2), 400 S.E.2d 393 (1990); see Fulton County Hosp. Auth. v. Hyman, 189 Ga.App. 613, 614(1), 376 S.E.2d 689 (1988).
By erroneously dismissing the Estate's complaint, the trial court enabled the Sidwells to circumvent the strict requirements for opening default. At a minimum, opening default requires proof of a providential cause which prevented the filing of the required pleadings, or excusable neglect, or a proper case.3 OCGA § 9-11-55(b). A legal excuse for nonappearance is an implicit requirement for opening default. West Court Square v. Assayag, 131 Ga.App. 690, 691(2), 206 S.E.2d 579 (1974).
Here, the Sidwells offered no evidence of providential cause or excusable neglect. See Coleman v. Dairyland Ins. Co., 130 Ga.App. 228, 229, 202 S.E.2d 698 (1973) ( ). Nor did they show this was a "proper case." Floyd, 198 Ga.App. at 101(2), 400 S.E.2d 393 ( ). Although the Sidwells testified that they did not answer the lawsuit because they did not want to upset the elder Sidwell, they still did not bother to file a response until 25 days after he died. See Brown v. Nat. Van Lines, 145 Ga.App. 824, 825, 245 S.E.2d 27 (1978) ( ). Such self-serving rationalization, without more, did not constitute a "proper case" within the meaning of OCGA § 9-11-55(b). See Stewart v. Turner, 229 Ga.App. 119, 121(2), 493 S.E.2d 251 (1997). Because the Sidwells did not satisfy any of the three...
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