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Georgia Highway Express Company v. Do-All Chemical Company

165 S.E.2d 429, 118 Ga. App. 736, 1968 Ga. App. LEXIS 1513
CourtCourt of Appeals of Georgia
DecidedDecember 2, 1968
Docket43776
StatusPublished
Cited by16 cases

This text of 165 S.E.2d 429 (Georgia Highway Express Company v. Do-All Chemical Company) 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
Georgia Highway Express Company v. Do-All Chemical Company, 165 S.E.2d 429, 118 Ga. App. 736, 1968 Ga. App. LEXIS 1513 (Ga. Ct. App. 1968).

Opinion

Whitman, Judge.

To the plaintiff appellant’s declaration in attachment, no answer was filed within the time allowed by law and the trial court entered an order declaring the defendants to be in default. However, the trial court subsequently granted a motion by defendant Do-All Chemical Company to open the default. It is from the latter order that the plaintiff appeals enumerating it as error. A cer- ' tificate for immediate review of the ruling was executed by the trial court in accordance with the Appellate Practice Act. See Ga. L. 1965, p. 18, as amended by Ga. L. 1968, pp. 1072, 1073.

The requirements for opening a defaulted case are set forth in Code Ann.. § 81A-155 (b) (Ga. L. 1966, pp. 609, 659; Ga. L. 1967, pp. 226, 238). This section requires that any showing to open a default “shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.”

The defendant’s motion to vacate states only that “defendant *737 has a good and meritorious defense to the declaration.” No facts regarding the defense are set forth, only this conclusion. All the facts set forth relate to certain events which transpired and which form the ground upon which the motion to vacate is based, i.e., excusable neglect. Thus a condition precedent to opening the default was not met and the trial judge had no discretion in the matter. See Johnson v. Dockery, 222 Ga. 569 (150 SE2d 921); Blanch v. King, 202 Ga. 779 (44 SE2d 779); Pryor v. American Trust tfee. Co., 15 Ga. App. 822 (2) (84 SE 312).

Argued July 1, 1968 Decided December 2, 1968. Vandiver, Barwick & Bentley, M. Cook Barwick, John E. Talmadge, Ellis & Ellis, George B. Ellis, Jr., for appellant. Smith, Crisp & Hargrove, William E. Smith, San S. Harben, Jr., for appellees.

It was error to open the default.

Judgment reversed.

Felton, C. J., and Eberhardt, J., concur.

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Bluebook (online)
165 S.E.2d 429, 118 Ga. App. 736, 1968 Ga. App. LEXIS 1513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-highway-express-company-v-do-all-chemical-company-gactapp-1968.