Litton Industries Credit Corp. v. McDonald

241 S.E.2d 216, 240 Ga. 459, 1978 Ga. LEXIS 755

Opinion

Marshall, Justice.

The appellee filed a complaint in equity under Code Ann. § 81A-160 (e) (Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240) in the Fulton Superior Court to set aside a default judgment which the appellant had obtained in the Civil (now State) Court of Fulton County. Without expressly determining whether the default judgment was subject to being set aside in equity, the trial judge entered an order granting the appellee an interlocutory injunction restraining the appellant from enforcing the default judgment and providing for various other equitable relief. The appellant appeals from this order. We reverse.

1. The appellee’s motion to dismiss the appeal is denied.

2. Although the trial judge was authorized under his discretionary equitable powers to order the interlocutory injunction pending the culmination of this action, the trial judge was not authorized to order such other equitable relief without first determining that the default judgment was "subject to be set aside in equity.” Code Ann. § 81A-160 (e), supra.¹ Since it is not clear whether the trial court reached this question, we find it necessary to reverse the order and remand the case for a determination of this threshold question.

Submitted October 7, 1977 Decided January 4, 1978. Bryant, Davis & Cowden, Bartow Cowden, III, for appellant. Scheer & Eisner, Robert A. Eisner, William A. Gray, for appellee.

Judgment reversed.

All the Justices concur.

1 We pretermit, and therefore do not answer, the question of the trial judge’s authority otherwise to grant the specific relief in this order.