White Plains Carpet v. U.S. Fidelity & Guaranty Co.

• Decision Date: 05 October 1973
• Docket Number: No. 1,No. 48298,48298,1
• Citation: 202 S.E.2d 558,130 Ga.App. 158
• Parties: WHITE PLAINS CARPET v. UNITED STATES FIDELITY & GUARANTY COMPANY et al
• Court: Georgia Court of Appeals

Page 558

202 S.E.2d 558

130 Ga.App. 158

WHITE PLAINS CARPET v. UNITED STATES FIDELITY & GUARANTY COMPANY et al.

No. 48298.

Court of Appeals of Georgia, Division No. 1.

Oct. 5, 1973.

Rehearing Denied Nov. 1, 1973.

Gearinger, Bowles & Petty, H. H. Gearinger, Chattanooga, Tenn., for appellant.

McCamy, Minor, Phillips & Tuggle, Carlton C. McCamy, Dalton, for appellees.

Syllabus Opinion by the Court

BELL, Chief Judge.

The defendants failed to answer the complaint within 30 days from the date of service and were in default. An answer was filed 15 days later on February 9 1972. Plaintiff moved to strike the answer and for default judgment on the ground that the costs were not paid until February 10, 1972, the day after the filing of the answer. In support of its motion reliance was made upon entries made in the clerk's records that the costs were paid on the latter date. The entries were made (1) by notation on the inside of the file cover of the case; (2) in the clerk's civil costs book; and (3) in the clerk's cash receipts book. Defendants responded to the motion and submitted affidavits, one by defendants' counsel and the other by an employee of the clerk. Counsel's affidavit averred that at the time he filed the answer on February 9, 1972, he concurrently tendered his firm's check for the accrued costs which was accepted in payment by the clerk's office on his advice that the answer was filed within the 15 day period after the answer day; and that he requested the clerk that entry be made of the filling of the answer and the payment of costs. The affidavit by the employee of the clerk's office corroborates counsel's affidavit but in addition averred that the answer was marked filed and docketed on February 9, 1972, but the entry of payment of costs was not made until the following day, February 10, 1972. Subsequent to plaintiff's motion and defendants' affidavits, an entry was made on the trial court's issue docket nunc pro tunc that the accrued costs had been paid on February 9, 1972. The trial court denied the plaintiff's motion to strike the answer and for default judgment and to strike the affidavit of the employee of the clerk. Held:

A default may be opened as a matter of right within 15 days of the default upon the payment of costs. CPA § 55 (Code Ann. § 81A-155). The payment of costs is a mandatory condition precedent to the opening of the default. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga.App. 502, 171 S.E.2d 361. The affidavits submitted by the defendants proved that the accrued costs were in fact timely paid. The plaintiff contends, however, that the trial court erred in considering them on the grounds that this extrinsic evidence cannot be...