Marler Oil Co. v. United Car & Truck Leasing, Inc.

Court of Appeals of Georgia

Marler Oil Co. v. United Car & Truck Leasing, Inc.

243 S.E.2d 336, 145 Ga. App. 160, 1978 Ga. App. LEXIS 1899

CourtCourt of Appeals of Georgia

DecidedMarch 7, 1978

Docket54890

StatusPublished

This text of 243 S.E.2d 336 (Marler Oil Co. v. United Car & Truck Leasing, Inc.) 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.

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Marler Oil Co. v. United Car & Truck Leasing, Inc., 243 S.E.2d 336, 145 Ga. App. 160, 1978 Ga. App. LEXIS 1899 (Ga. Ct. App. 1978).

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Opinion

Banke, Judge.

The appellee filed this action on August 6, 1976; service was perfected on August 10, 1976; and a default judgment was signed on October 19, 1976. No date of filing appears on the judgment. The appellant filed a motion to open default on January 20, 1977, based on excusable neglect in failing to file a timely answer. Following an evidentiary hearing, the trial judge denied the motion, finding that a final judgment had been entered on October 21, 1977, and therefore, that he no longer had the authority to open the default. This appeal followed.

Code Ann. § 81A-155 (b) provides that the trial judge has the discretion to allow the opening of a default under certain circumstances, "[a]t any time before final judgment...” The trial judge in this case found as a matter of fact that the judgment had been entered on the docket record in the clerk’s office on October 21, 1976, and [161]*161accordingly ruled that the judgment had become final on that date. The appellant contends that the record does not support this finding.

Argued November 9, 1977 Decided March 7, 1978. Barnes & Browning, Thomas J. Browning, for appellant. Turem & Kirschner, Andrew R. Kirschner, for appellee.

Although it is by far the better practice for the filing date to be affixed immediately to each and every document filed with the clerk’s office, such a procedure is not necessarily a condition precedent to a valid filing. Accord, Fastenberg v. Associated Distributors, Inc., 134 Ga. App. 213 (213 SE2d 898) (1975). While docketing may not be the primary evidence of the date of filing, it is evidence that the clerk has previously entered the judgment on the records of the court, and the judgment must be presumed to have been filed at least by that date. Cf. Fastenberg v. Associated Distributors, Inc., supra; Lewis & Sheron Enterprises, Inc. v. Great A & P Tea Co., 136 Ga. App. 910 (222 SE2d 659) (1975).

The trial court’s determination that the judgment had been recorded on October 21 was made following an evidentiary hearing. In the absence of a transcript of this hearing, we must accept this finding as correct, and accordingly, affirm the ruling of the lower court.

Judgment affirmed.

Quillian, P. J., and Shulman, J., concur.

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Banke, Judge.

The appellee filed this action on August 6, 1976; service was perfected on August 10, 1976; and a default judgment was signed on October 19, 1976. No date of filing appears on the judgment. The appellant filed a motion to open default on January 20, 1977, based on excusable neglect in failing to file a timely answer. Following an evidentiary hearing, the trial judge denied the motion, finding that a final judgment had been entered on October 21, 1977, and therefore, that he no longer had the authority to open the default. This appeal followed.

Code Ann. § 81A-155 (b) provides that the trial judge has the discretion to allow the opening of a default under certain circumstances, "[a]t any time before final judgment...” The trial judge in this case found as a matter of fact that the judgment had been entered on the docket record in the clerk’s office on October 21, 1976, and [161]*161accordingly ruled that the judgment had become final on that date. The appellant contends that the record does not support this finding.

Argued November 9, 1977 Decided March 7, 1978. Barnes & Browning, Thomas J. Browning, for appellant. Turem & Kirschner, Andrew R. Kirschner, for appellee.

Although it is by far the better practice for the filing date to be affixed immediately to each and every document filed with the clerk’s office, such a procedure is not necessarily a condition precedent to a valid filing. Accord, Fastenberg v. Associated Distributors, Inc., 134 Ga. App. 213 (213 SE2d 898) (1975). While docketing may not be the primary evidence of the date of filing, it is evidence that the clerk has previously entered the judgment on the records of the court, and the judgment must be presumed to have been filed at least by that date. Cf. Fastenberg v. Associated Distributors, Inc., supra; Lewis & Sheron Enterprises, Inc. v. Great A & P Tea Co., 136 Ga. App. 910 (222 SE2d 659) (1975).

The trial court’s determination that the judgment had been recorded on October 21 was made following an evidentiary hearing. In the absence of a transcript of this hearing, we must accept this finding as correct, and accordingly, affirm the ruling of the lower court.

Judgment affirmed.

Quillian, P. J., and Shulman, J., concur.

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243 S.E.2d 336, 145 Ga. App. 160, 1978 Ga. App. LEXIS 1899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marler-oil-co-v-united-car-truck-leasing-inc-gactapp-1978.

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