Strickland v. Galloway

• Court: Georgia Court of Appeals
• Writing for the Court: PANNELL; FELTON, C. J., NICHOLS, P. J., and FRANKUM; NICHOLS; I am authorized to state that FELTON, C. J., and FRANDKUM
• Citation: Strickland v. Galloway, 143 S.E.2d 3, 111 Ga.App. 683 (Ga. App. 1965)
• Decision Date: 30 April 1965
• Docket Number: 3,2,Nos. 1,No. 41215,41215,s. 1
• Parties: Sldney E. STRICKLAND v. Dr. Ben T. GALLOWAY

Page 3

143 S.E.2d 3

111 Ga.App. 683

Sldney E. STRICKLAND v. Dr. Ben T. GALLOWAY.

No. 41215.

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

April 30, 1965.

Rehearing Denied May 13, 1965.

Albert E. Butler, Jesup, for plaintiff in error.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, for defendant in error.

Syllabus Opinion by the Court.

PANNELL, Judge.

Sidney E. Strickland brought an action against Dr. Ben T. Galloway in the Superior Court of Glynn County seeking damages for alleged malpractice. Upon failure of the defendant to file an answer as required by law the case was in default. Section 18 of the Rules of Procedure, Pleading and Practice in Civil Actions (Ga.L.1953, Nov.Sess., pp. 440, 451; Code Ann. § 110-401). Prior to final judgment, but after the 15 days within which the default could have been opened as a matter of right, the defendant filed a motion to open the default, paid the cost, offered to plead a meritorious defense and announced ready for trial. The motion to set aside the default alleged substantially the following: that the defendant was served on March 5, 1964; that the 30-day period for answering expired April 4, 1964, and the 15-day period during which defendant could have opened said default as a matter of right expired on April 19, 1964; that from March 5, 1964, through March 12, 1964, defendant was engaged in taking care of his patients and performing operations with the local hospital and at his office; from March 13, 1964, through March 20, 1964, he attended a meeting of the Board of the College of Surgeons in New Orleans, La.; from March 21st through April 13, 1964, he attended his patients and performed surgical operations; and on said last day left for Washington, D. C. as a representative of the local hospital in connection with work on building an addition and returned on April 16th and after his return treated patients on that day and on April 17th. On April 17th, he left for Columbus, Ga., to attend a meeting of the Board of Directors of Blue Shield and returned on April 19th; that on February 10, 1964, he performed an operation on a relative who was returned to her home on February 23rd, and it was necessary for him to go to her home at Nahunta, Ga., on many different occasions 'to treat and console' this relative who was extremely close to him and who subsequently died, causing him great pain and grief; that he was chief of the medical staff of the local hospital and during the period of time from March 5, through April 19, a walkout by the colored employees had occurred and it was necessary for him to devote much time and attention to this major problem; that he had frequent meetings with the executive committee of the medical staff with the local hospital authority members, and many informal meetings and conferences with the hospital administrator; that the many problems involved caused mental grief and anguish to defendant; that he spent much time in working and studying on the plans for the addition to the hospital and met with committees several times during this period; that as a result of all of the above facts, the defendant had been mentally and physically burdened by the press of his patients' care and welfare, by the demands of his medical practice, by the obligations and responsibilities imposed upon him as chief of staff of the local hospital and by the sickness, operation and death of his close relative, to the point that he had reached mental exhaustion; that he found that he was unable to care for and attend to his personal business and was mentally unable to cope with many matters not relating directly to his obligations to his patients and the hospital; that his mental condition in this respect caused him to fail to answer plaintiff's complaint within the time required by law.

The trial court granted the motion to open the default, the case was tried, verdict and judgment were rendered for the defendant, and the plaintiff brought his case to this court assigning error on the overruling of a motion to dismiss the motion to open the default and to the overruling of his motion for new trial; however, the motion for new trial is abandoned in his brief in this court on all grounds other than as might be affected by the ruling on the motion to open the default. HELD: '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.' Rule 21 of the Rules of Procedure, Pleading and Practice in Civil Actions (Ga.L.1946, pp. 761, 778; Code Ann. § 110-404). The discretion of the trial court to open a default is greater before a final judgment than after, Brucker v. O'Connor, 115 Ga. 95, 96, 41 S.E. 245, and the above Code section 'providing for the opening of defaults, should be given a liberal construction, in the promotion of justice and the establishment of the truth; and the discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff. Thompson v. Kelsey, Adm'x, 8 Ga.App. 23, 68 S.E. 518; Bass v. Doughty, 5 Ga.App. 460 , 63 S.E. 516; Brawner v. Maddox, 1 Ga.App. 337 , 58 S.E. 278; Polerack [Polarek] v. Gordon, 102 Ill.App. 356; Tucker v. Harris, 13 Ga. 2 , 58 Am.Dec. 488; Gray v. McNeal, 12 Ga. 424; Davis v. Bray, 119 Ga. 224 , 46 S.E. 90; Birch [Burch] v. Pope, 114 Ga. 334, 40 S.E. 227.' Tedcastle & Co. v. J. T. Brewer & Co., 19 Ga.App. 650(1), 91 S.E. 1051. See also, Butler & Co. v. Strickland-Tillman Hdw. Co., 15 Ga.App. 193, 82 S.E. 815; Sherman v. Stephens, 30 Ga.App. 509, 518, 118 S.E. 567; Bryant v. Elberton & Eastern Ry. Co., 20 Ga.App. 586, 93 S.E. 219; Haynes v. Smith, 99 Ga.App. 433, 108 S.E.2d 772; Swain v. Harris, 101 Ga.App. 263, 113 S.E.2d 467; First National Ins. Co. of America v. Thain, 107 Ga.App. 100, 129 S.E.2d 381; Kellam v. Todd, 114 Ga. 981, 41 S.E. 39; Brucker v. O'Connor, 115 Ga. 95, 96, 41 S.E. 245; Ingalls v. Lamar, 115 Ga. 296, 41 S.E. 573; Green v. Whitehead, 204 Ga. 274, 49 S.E.2d 527.

Whether or not sufficient facts were alleged to authorize the exercise of discretion by the trial court on the grounds of providential cause or excusable neglect, the facts alleged in the motion for the opening of the default were sufficient to authorize the exercise of the trial judge's discretion under the third ground 'where the judge, from all the facts, may determine that a proper case has been made for the default to be opened.' Butler & Co. v. Strickland-Tillman Hdw. Co., 15 Ga.App. 193, 82 S.E. 815; Sherman v. Stephens, 30 Ga.App. 509, 518, 118 S.E. 567. No injury to plaintiff is shown where there was no delay in the trial of the case and where upon the trial there was a verdict for the defendant and the exception to the refusal to grant a motion for new trial is based solely on the alleged error in the antecedent ruling opening the default. See Bradley v. Henderson, 56 Ga.App. 488(2), 193 S.E. 79.

Judgment affirmed.

BELL, P. J., and J...