Singleton v. Varnedoe

234 S.E.2d 86, 141 Ga. App. 311, 1977 Ga. App. LEXIS 1886

Opinion

Bell, Chief Judge.

This is a trespass and conversion suit. Defendant allowed the case to go into default by his failure to timely file an answer. The trial court entered an order denying defendant’s motion to open the default and then granted judgment to plaintiff for the amount claimed. A jury was not impaneled to decide the issue of damages. Held:

1. The record fails to show an abuse of discretion by the trial court in denying the motion to open the default and we affirm that part of the judgment denying defendant’s motion.

2. As this is an action ex delicto, plaintiff was required to establish his damages by evidence before a jury by CPA § 55 (a) (Code Ann. § 81A-155(a)). As a jury was not impaneled, that part of the judgment awarding damages to defendant is void. First Fidelity Ins. Corp. v. Busbia, 128 Ga. App. 485 (197 SE2d 396). The portion of the judgment awarding damages is reversed.

Judgment affirmed in part and reversed in part.

McMurray and Smith, JJ., concur.