Georgia Highway Express, Inc. v. Whaley

Court of Appeals of Georgia

Georgia Highway Express, Inc. v. Whaley

305 S.E.2d 411, 166 Ga. App. 662, 1983 Ga. App. LEXIS 2289

Court of Appeals of Georgia·Decided May 17, 1983·No. 66360·Published·Cited by 4 cases

Opinion

Banke, Judge.

The defendant appeals an order denying its motion under the provisions of OCGA § 9-11-60 (d) (Code Ann. § 81A-160) to set aside a default judgment entered when it failed to answer the call of the case for trial. The record shows without dispute that defendant’s counsel had previously withdrawn from the case and had notified the court. In spite of this fact, the only notice of the trial date was sent to the former counsel who made no effort to inform his former client. Held:

The notice provided to former counsel was not sufficient to meet the statutory notice requirement set forth in OCGA § 9-11-40 (c) (Code Ann. § 81A-140). The order denying the motion to set aside is consequently reversed, based on the presence of a non-amendable defect apparent on the face of the record. See generally OCGA § 9-11-60 (d) (Code Ann. § 81A-160); Wilkes v. Ricks, 126 Ga. App. 266 (190 SE2d 603) (1972); Tallman Pools of Ga. v. Napier, 137 Ga. App. 500 (1) (224 SE2d 426) (1976). Cf. McNally v. Stonehenge, Inc., 242 Ga. 258 (248 SE2d 653) (1978).

Judgment reversed.

Deen, P. J., and Carley, J., concur.

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Banke, Judge.

The defendant appeals an order denying its motion under the provisions of OCGA § 9-11-60 (d) (Code Ann. § 81A-160) to set aside a default judgment entered when it failed to answer the call of the case for trial. The record shows without dispute that defendant’s counsel had previously withdrawn from the case and had notified the court. In spite of this fact, the only notice of the trial date was sent to the former counsel who made no effort to inform his former client. Held:

The notice provided to former counsel was not sufficient to meet the statutory notice requirement set forth in OCGA § 9-11-40 (c) (Code Ann. § 81A-140). The order denying the motion to set aside is consequently reversed, based on the presence of a non-amendable defect apparent on the face of the record. See generally OCGA § 9-11-60 (d) (Code Ann. § 81A-160); Wilkes v. Ricks, 126 Ga. App. 266 (190 SE2d 603) (1972); Tallman Pools of Ga. v. Napier, 137 Ga. App. 500 (1) (224 SE2d 426) (1976). Cf. McNally v. Stonehenge, Inc., 242 Ga. 258 (248 SE2d 653) (1978).

Judgment reversed.

Deen, P. J., and Carley, J., concur.

Georgia Highway Express, Inc. v. Whaley, 305 S.E.2d 411, 166 Ga. App. 662, 1983 Ga. App. LEXIS 2289 (Ga. Ct. App. 1983).

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Opinion

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