Williams v. Calloway, 67794

• Decision Date: 22 June 1984
• Docket Number: No. 67794,67794
• Citation: 319 S.E.2d 500,171 Ga.App. 286
• Parties: WILLIAMS v. CALLOWAY.
• Court: Georgia Court of Appeals

Page 500

319 S.E.2d 500

171 Ga.App. 286

WILLIAMS v. CALLOWAY.

No. 67794.

Court of Appeals of Georgia.

June 22, 1984.

Sara Nell Langland, Cedartown, for appellant.

Harvey C. Brown, Jr., Rome, for appellee.

CARLEY, Judge.

Appellee petitioned the probate court, seeking appointment as administrator of his deceased wife's estate. Appellant, who is the mother of the deceased, filed an objection to the appointment. The probate court appointed appellee to be administrator of the estate, and appellant appealed that ruling to the superior court. When the case was called for trial in the superior court, appellee failed to appear, and appellant obtained a default judgment. Thereafter, appellee moved to have the default judgment set aside. That motion was granted. A trial on the merits resulted in a judgment in favor of appellee, and appellant appeals.

1. Appellant asserts that the granting of appellee's motion to set aside the default judgment was erroneous because the requirements of OCGA § 9-11-60(d) were not met. That provision permits a judgment to be set aside where a nonamendable defect appears on the face of the record or pleadings, or where there is a jurisdictional defect. The alleged defect in the instant case was appellee's lack of notice as to the trial date. However, the case appeared on a published trial calendar.

"[N]otice of trial by publication of the court calendar is adequate notice pursuant to [OCGA § 9-11-40(c) ]; however, ... where a complaint is dismissed for failure to prosecute, the trial court has discretionary authority to set aside the judgment. Spyropoulos v. John Linard Estate, 243 Ga. 518 (1979)." First Nat. Bank of Chattooga County v. Gorlin, 243 Ga. 707, 708, 256 S.E.2d 450 (1979). This rule applies when a default judgment has been entered because one of the parties failed to appear for trial. Marshall v. York, 165 Ga.App. 795, 302 S.E.2d 711 (1983).

" '(T)he trial court must exercise its discretion in determining "whether under all the circumstances of the case" a judgment should be set aside where obtained in the absence of the party or his counsel who contends he had no knowledge of the publication of the calendar or other notice of the calendar. [Cit.]' [Cit.]" Glennco v. Silver Shoes, 164 Ga.App. 30, 31, 295 S.E.2d 357 (1982). In the case at bar, counsel for appellee had requested and received permission from the court to withdraw from the case shortly before trial. The published calendar listed appellee's former attorney as counsel of record. There was nothing to indicate that the former attorney had informed appellee of the trial date, or that appellee was personally aware of it. All that appears from the record is that notice of the trial date was mailed to appellee personally on the day after the default judgment had been entered. The trial court fully considered these circumstances in deciding to set aside the default judgment, and it cannot be said that its determination constituted an abuse of discretion. Accordingly, we find no error. See Marshall v. York, supra; Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979). Compare Havlik v. Tuftcraft, Inc., 162 Ga.App. 180, 290 S.E.2d 524 (1982); East India Co. v. Marsh & McLennan, Inc., 160 Ga.App. 529, 287 S.E.2d 574 (1981).

2. The default judgment obtained by appellant expressly denied appellee the right to administer his late wife's estate or to inherit therefrom. When that judgment was set aside, the court's order specified that the issue of administration was reopened for further consideration. However, that portion of the judgment relating to the issue of inheritance was set aside altogether, on the ground that the superior court had no authority to consider that issue under the circumstances of the case. Appellant enumerates as error the trial court's preclusion from consideration of the inheritance issue.

An appeal to the superior court from the probate court is a de novo investigation. OCGA § 5-3-29. However, the trial in the superior court is not a trial without limitation, but is rather "a new trial in which only the matter presented to the court below can be relitigated." Mathews v. Mathews, 136 Ga.App. 833, 837, 222 S.E.2d 609 (1975). In the instant case, the only issue addressed by the probate court was the appointment of an administrator. Accordingly, the superior court, as an appellate body, was limited to a consideration of that issue alone. The trial court correctly set aside that...