Daniel v. Leibolt

342 S.E.2d 334, 178 Ga. App. 186, 1986 Ga. App. LEXIS 1625
CourtCourt of Appeals of Georgia
DecidedFebruary 12, 1986
Docket71948
StatusPublished
Cited by5 cases

This text of 342 S.E.2d 334 (Daniel v. Leibolt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel v. Leibolt, 342 S.E.2d 334, 178 Ga. App. 186, 1986 Ga. App. LEXIS 1625 (Ga. Ct. App. 1986).

Opinions

Banke, Chief Judge.

The appellee obtained a default judgment against the appellant, Wayne E. Daniel, for over $200,000 in principal, interest, and attorney fees, in a suit on a promissory note. This appeal follows the denial of the appellant’s motion to set the judgment aside based on insufficient service of process.

The complaint, filed on June 18, 1984, specified that the appel[187]*187lant resided within the jurisdiction and venue of the court at 1279 Cliffwood Dr., S.E., Smyrna, Georgia. Three separate returns of service were entered in the case. The first, dated June 21,1984, consisted of a printed statement signed by a deputy marshal to the effect that, after a “diligent search,” the appellant was not to be found within the jurisdiction of the court, accompanied by the deputy marshal’s handwritten notation as follows: “His son Buddy still lives here, [i.e., the address set forth in the complaint], but [the appellant] moved.” The second return, dated August 2, 1984, specified that copies of the summons and complaint had been delivered to the appellant’s son at the same address, followed by the deputy marshal’s handwritten notation: “Subject refused to take paper into hand. I dropped it on floor.” The third and final return, executed on the same date by the same deputy marshal, similarly specified that copies of the summons and complaint had been delivered to the appellant’s son. However, on this return the address in question was characterized, for the first time, as being the appellant’s “most notorious place of abode in this county.”

The appellant never filed an answer or other responsive pleading; and on October 8, 1984, the appellee moved for the entry of a default judgment. Along with this motion, the appellee submitted the affidavit of his attorney to the effect that he (the attorney) had received a telephone call on August 29, 1984, from a person identifying himself as Wayne E. Daniel, Jr., who, when asked if his father (the appellant) lived at the address at which service had been effected, had responded, “yes.” Also submitted in support of the motion for default judgment was the affidavit of an investigator employed by the appellee to locate “the whereabouts and address of a Wayne E. Daniel.” In this affidavit, the investigator averred that he had determined that the subject in question had recently moved to 1279 Cliffwood Drive, Smyrna, Georgia, from 755 Wylie Street, S.E., Atlanta, Georgia. A post office certification was submitted in support of this determination, specifying that a “Wayne Daniel,” formerly of 755 Wylie Street, S.E., Atlanta, had requested the post office to forward his mail to 1279 Cliffwood Drive, Smyrna.

A hearing was initially scheduled to be held on the appellee’s motion for default judgment on October 17, 1984. The appellant’s son, Wayne E. “Buddy” Daniel appeared at this hearing, but the appellant did not. The trial court indicated at this time that on the basis of the deputy marshal’s August 2nd return of service, stating that a copy of the complaint and summons had been left with the son at the appellant’s most notorious place of abode, it was inclined to rule that the case was in default. However, “in an abundance of caution,” the court declined to grant a default judgment and instead rescheduled the hearing for December 5, 1984.

Although, as previously indicated, the appellant never filed any [188]*188responsive pleadings in the case, several affidavits were filed on the day of the December 5th hearing in opposition to the motion for default judgment. Two were executed by the appellant’s son, Wayne E. “Buddy” Daniel, who averred that it was he who had formerly resided at 755 Wylie Street in Atlanta and who had filed the forwarding address with the post office. He further averred that his father had not resided with him at 1279 Cliffwood Drive at the time of the purported service and that his father did not currently reside there. Also submitted was the affidavit of one John Carlyle, who averred that he resided with “Wayne E. Daniel (son)” at the 1279 Cliffwood Drive address; that “Wayne E. Daniel (father)” did not live at that address; and that he (the father) had not lived there during July or August of 1984, when the purported service was effected. These affidavits were corroborated by the affidavit of one Bill Sherry, who averred that he had leased the premises located at 1279 Cliffwood Drive in Smyrna to “Wayne E. Daniel, white male, age approximately twenty-one”; that the latter resided there with a roommate, “John Carlisle (sic)”; and that he (the landlord) had never seen Wayne E. Daniel’s father on the premises, although he (the landlord) had been there on numerous occasions since Wayne E. Daniel had been the lessee.

Notwithstanding these affidavits, the trial court awarded a default judgment to the appellee for all principal, interest, and attorney fees alleged to be owing on the note. On or about December 21, 1984, the appellant filed a motion to vacate and set aside this judgment, based on lack of personal jurisdiction resulting from alleged insufficient service of process. Two additional affidavits were submitted in support of this motion. One was the appellant’s own affidavit, stating that he did not currently reside at 1279 Cliffwood Drive in Smyrna; that he had not resided there at the time of the purported service; that he had not formerly resided at 755 Wylie Street in Atlanta; and that he had not filed a request with the post office to forward his mail from that address to 1279 Cliffwood Drive in Smyrna. The other additional affidavit was from the deputy marshal who had effected the purported service at 1279 Cliffwood Drive, stating that he had effected service on the appellant’s son at this address solely because the appellee’s attorney had instructed him to do so and that he had been in possession of no additional information suggesting that the appellant had actually lived there.

On April 26, 1985, the trial court entered an order denying the motion to set aside, concluding that the appellant “should have attacked the sufficiency of the service at the initial hearing” held on December 5, 1984, rather than waiting until judgment had been entered against him. This appeal followed. Held:

1. The appellee contends that the merits of the denial of the motion to set aside are not properly before this court, both because the [189]*189appellant’s notice of appeal specifies that the appeal is from the default judgment itself and because the sole error enumerated is the entry of the default judgment itself. This contention is without merit. While the notice of appeal does identify the default judgment as the ruling appealed from, it also makes specific reference to the subsequent denial of the motion to set aside; and the appeal, which was filed more than 30 days from the entry of the default judgment but less than 30 days from the denial of the motion to set aside, was obviously taken from the latter order. Similarly, although the sole enumeration of error is nominally directed towards the grant of the default judgment, it goes on to assert that “[t]he facts and the law warrant that the default judgment must be set aside.”

OCGA § 5-6-48

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Daniel v. Leibolt
342 S.E.2d 334 (Court of Appeals of Georgia, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
342 S.E.2d 334, 178 Ga. App. 186, 1986 Ga. App. LEXIS 1625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-v-leibolt-gactapp-1986.