Potts v. SMITH GRAIN COMPANY, INC.

108 S.E.2d 285, 99 Ga. App. 270, 1959 Ga. App. LEXIS 836

• Court: Court of Appeals of Georgia
• Decided: February 19, 1959
• Docket: 37530
• Status: Published

Opinions

Townsend, Judge.

“Under the rules of practice in the superior court, the garnishee has until the first day of the second term after service in which to answer (Code § 46-105; Averback v. Spivey, 122 Ga. 18, 49 S. E. 748; Gainesville Grocery Co. v. Bank of Dahlonega, 25 Ga. App. 230, 102 S. E. 912).” Peacock v. Walker, 213 Ga. 628, 629 (100 S. E. 2d 575). Since the summons of garnishment was filed to the January term of court of Hall County, which has four terms a year, the July term was the second term after service, and July 21 was the first day of that term. The garnishee could file an answer any time until this date without being in default. Code (Ann.) § 110-401 provides in part: “If any case is not answered on or before its appearance day, such case shall automatically become in default unless the time has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days after the appearance day, upon the payment of costs. If the case is still in default after the expiration of such period of 15 days, the plaintiff, at any time thereafter, shall be entitled to verdict and judgment by default.” Code (Ann.) § 110-406 provides: “The court, either in open court or at chambers, shall render judgment without the verdict of a jury in all civil cases founded on unconditional contracts in writing where an issuable defense is not filed under oath or affirmation on or before the appearance day as to such case and where the period allowed by law for opening defaults as a matter of right has expired, and where the case is still in default.” (Emphasis added). It appears from the foregoing statutes that the plaintiff is not entitled to a judgment by default until the expiration of the 15-day period during which the defendant may, as a matter of right, open the default by paying the accrued costs and filing a defense to the action. The defendant here had until July 21, to file its answer, and the judgment was taken on July 22, before the 15-day period had expired, although such judgment had not been entered upon the minutes of the court, according to the allegations of the motion, at the time the motion to vacate was filed. Accordingly, the judgment was premature and the defendant on motion made within such 15-day period had an absolute right to have it set aside and the default opened provided he paid the costs and set out a meritorious defense.

It does not appear from the record before us whether or not the defendant garnishee paid the accrued court costs at the time the motion to vacate the default judgment was filed. However, it is not necessary that the answer should allege this, and the issue may be raised only by a motion to strike the plea based on such fact. Laughlin v. Bon Air Hotel, Inc., 85 Ga. App. 43 (68 S. E. 2d 186). There being no motion directed to this point, this court will assume that was done which ought to have been done, and that the costs were in fact paid. Not only was the judgment in this case entered prematurely, but the motion to vacate the judgment was also filed before the expiration of the 15-day period, and it contained a meritorious defense based on the proposition that the judgment debtor was not the creditor of the garnishee in any amount except that sum which it tendered into court along with the motion. In' such circumstances the defendant’s right to have the default judgment so entered set aside is absolute.

Let it be frankly admitted that the distinction between those cases holding the discretion of the trial court in vacating judgments, not the result of jury verdicts, within the same term of court is plenary (Dover v. Dover, 205 Ga. 241, 53 S. E. 2d 492; International Agricultural Corp. v. Law, 40 Ga. App. 756 (1), 151 S. E. 557), and those holding that the court cannot vacate the judgment unless the movant shows a good reason in law for his failure to appear and answer in time (Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (3), 93 S. E. 530; Morris v. Morris, 82 Ga. App. 384, 389, 61 S. E. 2d 156), has resulted in a legal quagmire of decisions. The rule as set forth in one of the earliest cases, Russell v. Freedman’s Savings Bank of Macon, 50 Ga. 575, was that “the courts will not set aside a judgment against a garnishee who fails. to> answer, unless some good and satisfactory reason be shown therefor, to. be judged of by the' court.” A mistake on the part of the garnishee as to his legal duty was there held sufficient. The garnishee here sets up a similar defense, in that it attempted to and thought it had replied to the justice of the peace issuing the summons of garnishment and did not realize anything further was required of it. Good faith is frequently a prime consideration (Brown Realty Co. v. Joel Hunter & Co., 44 Ga. App. 146, 160 S. E. 681) as is the fact that the discretion of the court in opening a default judgment against a garnishee is greater at the second term of court than thereafter (Jones v. Bibb Brick Co., 120 Ga. 321, 328, 48 S. E. 25). And, prior to the time that a judgment is filed and entered upon the minutes of the court, the right of the trial court to revise or vacate it is almost uncontrolled. See Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602, 609 (160 S. E. 775). A motion of the nature here dealt with does not fall under Code § 110-702, which requires that' a motion to set aside a judgment be based on a. defect appearing on the face of the record, nor is it required to be filed as a separate petition with process attached. See Dover v. Dover, 205 Ga. 241, supra. Accordingly, the motion to vacate the judgment here was addressed to the sound discretion of the trial court even though the,- costs had not been paid, and he did not err in overruling demurrers to this motion on the grounds that it set out no cause of action for the relief prayed for, showed on its face that the defendant was not entitled to the relief sought, failed to allege any legal grounds for vacating the judgment, and was legally insufficient as a traverse to the return of the sheriff. On the latter issue, see Brown Realty Co. v. Joel Hunter & Co., 44 Ga. App. 146, supra. Incidentally, as pointed out in this division and division 1 of this opinion, the right of the garnishee to have the judgment set aside exists as an absolute one provided the costs have been paid, or a discretionary one provided the costs have- not been paid, irrespective of the validity- of the traverse to the return of service of the officer on the summons of garnishment.

The trial court did not err in overruling the general demurrers and motion to dismiss -the motion to vacate a default judgment against the defendant.

Judgment affirmed.

Gardner, P. J., and Carlisle, J., concur.