Foster Company v. Livingston

193 S.E.2d 626, 127 Ga. App. 317, 1972 Ga. App. LEXIS 870

• Court: Court of Appeals of Georgia
• Decided: September 5, 1972
• Docket: 47189
• Status: Published

Opinions

Pannell, Judge.

Paragraph (b) of Section 55 of the Civil Practice Act (Ga. L. 1966, pp. 609, 659; Code Ann. § 81A-155 (b)) provides: "At any time before final judgment, the court in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.” This Section is substantially the same as the old law embodied in former Code § 110-404.

Submitted May 4, 1972 Decided September 5, 1972 Rehearing denied October 17, 1972

When the defendant here complied with the requirements of Section 55 (b) of the Civil Practice Act, and the trial judge from all of the facts determined "that a proper case had been made for the default to be opened,” we cannot, under the facts, say that the trial judge abused his discretion even though there was no providential cause or excusable neglect. See Brawner v. Maddox, 1 Ga. App. 332, 337 (58 SE 278), where this court, in reference to the old statute said: "The wording of § 5072 is such that it conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, 'where the judge from all the facts shall determine that a proper case has been made,’ etc. We cannot say that the learned judge abused the discretion as insisted by plaintiff in error.” See also Butler & Co. v. Strickland-Tillman Hardware Co., 15 Ga. App. 193 (82 SE 815); and Strickland v. Galloway, 111 Ga. App. 683 (143 SE2d 3) followed in Clements v. United Equity Corp., 125 Ga. App. 711 (188 SE2d 923).

Neither did the trial judge err in refusing to dismiss the answer filed by the defendant and in refusing to enter judgment for the plaintiff as in cases of default.

Judgment affirmed.

Hall, P. J., and Quillian, J., concur. Adams, O’Neal & Hemingway, Thomas W. Talbot, for appellant. Shepard & Berenthien, Virgil H. Shepard, for appellee.