Newell Road Builders, Inc. v. Ramirez

192 S.E.2d 184, 126 Ga. App. 850, 1972 Ga. App. LEXIS 1276

• Court: Court of Appeals of Georgia
• Decided: July 10, 1972
• Docket: 46931
• Status: Published

Opinions

Bell, Chief Judge.

The plaintiffs caused an attachment to issue against property of defendant and a levy was made. Defendant filed a replevy bond after the levy. Plaintiffs also filed a declaration in attachment and a notice to defendant that the attachment was returnable to the September term of superior court. Personal service on defendant was made on July 16, 1971. No defensive pleadings were filed within the time prescribed. Plaintiffs, in September, 1971, obtained a default judgment for their damages on a jury verdict as the claim was one ex delicto. In November, 1971, defendant simultaneously filed a motion and complaint in equity to set aside and vacate the default judgment. Plaintiffs moved to dismiss the complaint. The subject matter of both cases being the same, the trial court consolidated the matters and heard and decided both at the same hearing. It was stipulated at the hearing that defendant had received notice of the attachment, the declaration, and the notice to defendant, but that defendant received no notice that plaintiff would seek a default on September 10, 1971. It also appears from the record without dispute that this case did not appear on the trial calendar for the term of court at which the jury trial was held and that plaintiff did not comply with a local rule of court requiring that a party desiring a trial must notify the clerk in writing 30 days prior to the opening of court with a copy furnished to the opposing party. The motion to set aside was overruled and the plaintiffs’ motion to dismiss, treated as one for summary judgment, was granted. The defendant filed this appeal in the Supreme Court and the latter transferred the case to us, presumably, because the appeal involves no equity and is a matter at law. Held:

The only basis for the relief sought must be found in the provisions of CPA §60 (d) (Code Ann. §81A-160 (d)), which provides in part: "A motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings.” On appeal, while conceding that it has no standing to contest its liability to plaintiffs, defendant contends that the default judgment should be set aside because it was never given notice of the trial before a jury on the question of' damages. CPA § 55 (a) (Code Ann. § 81A-155 (a)) provides in part that before plaintiff is entitled to judgment by default in an action ex delicto plaintiff must prove his damages before a jury with the right of the defendant to introduce evidence as to damages. CPA §40 (c) (Code Ann. § 81A-140 (c)) states that "The courts shall provide for the placing of actions upon the trial calendar (1) without request of the parties but upon notice to the parties, or (2) upon request of a party and notice to the other parties.” However, this provision must be construed in pari materia with CPA §5 (a) (Code Ann. § 81A-105 (a)). The latter section contains a provision that "the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices, including notices of time and place of trial . . .” By its failure to plead, the defendant waived all notice of any trial on the limited issue of the amount of damages and there was no requirement to place the case on the trial calendar or for plaintiff to comply with the local rule. Having chosen to ignore the requirement to file a timely responsive pleading, it was incumbent upon the defendant to take positive steps to notify the trial court that it wanted to exercise its right to participate in the trial on the question of damages. This it could have done by a timely request to the trial court to place the case on the trial calendar under CPA §40 (c) (2), supra. We have considered the cases of Williams v. Linn, 108 Ga. App. 629 (133 SE2d 892) and Barber v. Canal Ins. Co., 119 Ga. App. 738 (168 SE2d 868). Williams was decided at a time prior to the Civil Practice Act. Barber was decided after the passage of the Civil Practice Act. The local court rule in Barber which required notice as to the status of a case even to a party in default is inconsistent with CPA § 5 (a). CPA §83 (Code Ann. § 81A-183) states-"Each court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with the provisions of this Title or any other statute.” The holding in Barber v. Canal Ins. Co., supra, is overruled.

As there was a waiver of notice of the trial on the question of the amount of damages, there is no nonamendable defect apparent upon the face of the record or pleadings and defendant is not entitled to the relief requested. See Newton v. Newton, 226 Ga. 440 (175 SE2d 543).

Judgment affirmed.

Hall, P. J., Eberhardt, P. J., Deen, Quillian, Clark, and Stolz, JJ., concur. Pannell and Evans, JJ., dissent. Argued January 31, 1972— Decided July 10, 1972— Rehearing denied July 31, 1972 Glover & Davis, Welborn B. Davis, Jr., for appellant. Sanders, Mottola, Haugen, Wood & Goodson, Gus L. Wood, Clifford A. Cranford, for appellee.