Broadaway v. Thompson

194 S.E.2d 342, 127 Ga. App. 600, 1972 Ga. App. LEXIS 968

• Court: Court of Appeals of Georgia
• Decided: November 1, 1972
• Docket: 47305
• Status: Published

Opinions

Stolz, Judge.

The plaintiff appeals from orders entered on April 21, 1972, opening a default prior to final judgment and allowing the defendant to file defensive pleadings. The court certified the orders for immediate review.

Under Code Ann. § 81A-155 (b) (Ga. L. 1966, pp. 609, 659, as amended), any time before final judgment the court in its discretion may open a default "where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened.” Where, as here, the defendant has complied with all the conditions (payment of costs, offer to plead a meritorious defense instanter and to announce ready for trial), the court has wide discretion, with which this court will not interfere unless manifestly abused. The exercise of the broader discretion under this ground than under the first two grounds of the statute (providential cause and excusable neglect) constitutes the general policy of our law, as indicated and embodied in our statutes for opening defaults. See Clements v. United Equity Corp., 125 Ga. App. 711 (188 SE2d 923) and cit.

The grounds of the motion to set aside the default, were substantially that, the defendant left the papers served on her in the action on December 14, 1971, with an attorney whom she sought to represent her; that after a day or two he declined to represent her, returning the papers to her; that, although the summons advised her to file an answer within 30 days after service thereof, the summons contained no date of service or signature of the serving officer; that the defendant, "a divorced woman who is unskilled in the conduct of lawsuits,” was not advised by the attorney she had consulted as to when an answer must be filed; that information on the cover of the complaint led her to believe that the case was to be tried during the March term, 1972, of court; that the court clerk’s office informed her that "the cases” were being put on the docket; that she then contacted the judge, who advised her to obtain counsel; that, throughout the time after service of the complaint, she conversed with the Farmer’s Home Administration’s Albany office, which informed her that there had never been a final inspection completed on the house being constructed for her by the plaintiff, who had brought the present action to recover the balance due under the construction contract (the plaintiff’s breach of which was alleged in the defendant’s defensive pleading).

Although the trial judge would have been justified in disallowing the opening of the default under the defendant’s showing; nevertheless, the conclusion is not demanded that his broad discretion, whether it was based on the third statutory ground or another, was "manifestly abused, to the injury of the plaintiff.” Strickland v. Galloway, 111 Ga. App. 683, 685 (143 SE2d 3), citing Ted-castle & Co. v. Brewer & Co., 19 Ga. App. 650 (1) (91 SE 1051), inter alia.

Argued July 5, 1972 Decided November 1, 1972 Rehearing denied November 21, 1972. Eugene C. Black, John L. Tracy, for appellant. Smith, Gardner, Wiggins, Geer & Brimberry, Jerry W. Brimberry, for appellee.

Judgment affirmed.

Bell, C. J., concurs. Evans, J., concurs specially.