Tallman Pools of Georgia, Inc. v. Napier

• Decision Date: 12 January 1976
• Docket Number: No. 2,51289,Nos. 51288,s. 51288,2
• Parties: TALLMAN POOLS OF GEORGIA, INC., et al. v. N. C. NAPIER (two cases)
• Court: Georgia Court of Appeals

Page 426

224 S.E.2d 426

137 Ga.App. 500

TALLMAN POOLS OF GEORGIA, INC., et al. v. N. C. NAPIER (two cases).

Nos. 51288, 51289.

Court of Appeals of Georgia, Division No. 2.

Jan. 12, 1976.

Rehearing Denied Feb. 6, 1976 in No. 51289.

William P. Smith, III, Decatur, for appellants.

Watson, Brown, Foster & Keller, Larry A. Foster, Jonesboro, for appellee.

QUILLIAN Judge.

These appeals involve companion cases and the central question of whether the defendant, appellant here, was notified within the meaning of CPA § 40(c) (Code Ann. § 81A-140(c); Ga.L. 1966, pp. 609, 653; 1967, pp. 226, 245; 1968, pp. 1104, 1108). Case #51288 was Civil Action #27,408 in the court below, while Case #51289 had its equivalent in Civil Action #27,409. Both actions were brought by the plaintiff, appellee here, seeking recovery for the breach of rental contracts and damages arising therefrom.

Counsel A was representing the defendant at the time the cases were stipulated for trial. They were continued for the purposes of settlement but no settlement was reached. At that point the defendant apparently became dissatisfied with Counsel A and contacted Counsel B to represent him. On January 21, 1975 the cases were again stipulated for trial to the February term of court and Counsel A was so notified. By letter dated January 23, 1975, Counsel B notified the clerk of court as follows: 'Please record my name as Attorney of Record for the Defendant in the above two cases. (Counsel A) has withdrawn as Attorney for the Defendant.' This letter was filed in the clerk's office as received on January 30, 1975. At about this same time (we shall deal with this at greater depth in the opinion) notice was sent by the clerk's office to Counsel A regarding the February 17, 1975 trial calendar and the call of the two cases at that time. On February 17, 1975 the case was called and no one answered for the defendant, the plaintiff being present. A judgment issued as of that date which recited that the trial judge after hearing evidence awarded damages in each of the two cases.

Present Counsel 'C' for the defendant filed a motion to set aside or a motion for new trial attacking, in each of the two cases, the validity of the judgments entered on the basis that no notice had been given to the defendant as required by law. A hearing was held on the two motions at which evidence was introduced and which resulted in the trial judge's denial of the motions. Appeal was taken to this court. Held:

The defendant argues that a new trial should have been granted or the judgment set aside because the evidence established that he did not receive the requisite notice under CPA § 40(c). He also urges a ground not previously presented in the lower court that the judgment is void on its face since it shows the trial judge heard the matter and that ex delicto damages were involved which required a trial by jury under CPA § 55 (Code Ann. § 81A-155; Ga.L.1966, pp. 609, 659; 1967, pp. 226, 238).

During the hearing the following pertinent evidence was adduced. The letter notifying the clerk regarding the change of defendant's counsel which was received on January 30, 1975 was styled: 'Re: Civil Action File #27,400 and #27,409 Napier v. Tallman Pools, et al.'

Case #27,408 was not mentioned in the letter. The deputy clerk in charge of mailing notice to counsel stated that the cases were filed by number and not by name and that the letter was placed in #27,409, but not in #27,408. She further testified that notice was normally sent out before the first of the month and that it would normally go out about the time the letter was received but she did not recall whether the letter was received before or after the notice was sent out. However, she then stated that based on the practice which she followed that if the letter had been received prior to the notice being sent out that she would have sent the notice to the new counsel (Counsel B). Based on that she then testified that notice had been sent before the letter was received. She further testified that the notice would have been sent to Counsel B at a subsequent time but the letter was overlooked.

Counsel B testified that he never received any notice of the call of the case and that he made no contact with Counsel A. The defendant's file was given to him by the defendant who previously had obtained it from Counsel A. Counsel A testified that he was never formally discharged nor did he expressly withdraw but that the defendant had asked him for the file and then he had received a copy of the letter which stated that he had withdrawn as counsel. He therefore assumed that he had been discharged and participated no further in the case.

1. With regard to the defendant's contention of lack of notice we treat the merits of such argument without considering technical distinctions between a motion to set aside a judgment and a motion for new trial since both motions were herein filed. The following authorities have relevance in our determination.

Where a default judgment is entered for the plaintiff without the requisite notice of trial assignment to the defendant the judgment should be set aside. Wilkes v. Ricks, 126 Ga.App. 266, 190 S.E.2d 603. A different result obtains, however, if the provisions for notice are complied with even though the party himself may not have actual notice. See Rockmart Bank v. Beck, 129 Ga.App. 457, 199 S.E.2d 907; Trice v. Howard, 130 Ga.App. 895, 204 S.E.2d 808; Newman v. Greer, 131 Ga.App. 128, 205 S.E.2d 486; Tootle v. Player, 225 Ga. 431, 433(3), 169 S.E.2d 340.

The letter sent to the clerk's office made reference to Case #27,409, but not to Case #27,408. Although the error...