*1 аdequate just and the award of respect condemnees damage taking alleged items compensation for provided, recover; legally.be entitled they for which of fur- alleged requirement however, that matter condemnees by condemnor nishing appraisal or estimate (c) answer in the (b) and paragraph prayers 14 and raised (b) prayers 28 and paragraph and in Wiggins, Lоrane of Mrs. Wig- Charlie cross action of L. (c) answer and of, will opinion holdings this adjudicated by gins, are on the trial re-adjudicated be reviewed cannot the trial court. appeals the pending J., concur. Hall, Jordan, J., Judgment P. affirmed. July Argued January 16, 1969 1969Decided Rehearing July 31, 1969 denied appellants. Tully Bond, Jr., M. appellee. Raley, Raley,
Shi & F. R. COMPANY LIBERTY INSURANCE 44466. AMERICAN v. SANDERS.
20a May Argued May 16, 1969 6, 1969 Decided Rehearing July 31, denied *3 for Royal, Zorn, appellant. A.
Zorn & William apрellee. J. Helms, Jack appeal motion to dismiss Judge.
Eberhardt, final designate the appeal did not ground notice merit. The issues judgment subsequently entered is without moot, from are not nor appealed involved in the order as the motion case, inasmuch judgment final the law of and a certif prior judgment, to final default was made for this there was obtained order. If icate immediate reviеw proceedings were denying all further was error wrong the defendant have been nugatory, in that event presenting appears to fully opportunity denied the what been a meritorious defense. have
(a) pro although Plaintiff the trial contends court merits, its the motion to the default on ceeded hear was insufficient matter of law to meet motion as (Code 55(b) 81A-155(b)). Ann. requirements of CPA § urged no fаcts to -is that the contained sustain con motion had a defense which is filed clusion movant “meritorious *4 that the answer filed in connection with the herewith” and part or made a motion. motion was verified the not (same 55(b) (Code 81A-155(b)) Ann. as old Code CPA § § 110-404) be provides that “In to allow the default to order § oath, shall set opened, showing shall be made under thus up defense, instanter, meritorious shall and plеad a offer to proceed section, with the trial.” This Code ready announce 206 given liberal defaults, be opening of should
“providing for the justice in and establishment promotion construction, Co., App. Brewer & Tedcastle & Co. v. Ga. of truth 19 (1) (91 Strickland v. citations. See also 1051), 650 (143 3), App. 111 685 SE2d and citations. Galloway, 683, Ga. facts, Under the it has italicized been held portion, Express merely conclusions, Highway not must be stated. Ga. (165 429). Co., Co. v. Do-All Chemical SE2d Ga. whether, This that the can if. the default so court determine opened plead were try movant were allowed to might in case, favor, the result be it at least or was (cf. Phillips plaintiff Taber, doubtful should recover v. (10 SE Blanch 565, 270); King, 779, 83 Ga. v. (44 779)); setting and the the matter applies SE2d rule any way forth defense “was attached to or in made a [not] part of or remotely mоtion ... even words [not] incorporate an made to, referred effort thus it vacate, component part motion to an exhibit or thereof.” as Pryor (84 v. American Trust &c. 15 Ga. alleged
But the instant case was motion that good “movant shows that it has a and meritorious defense to said action which is herewith,” and defense, contained filed in the answer, was and filed along tendered with the motion as part exhibit оr thereof. “Statements in pleading be adopted by part different reference pleading the same pleading any in another or in motion. copy A writ- pleading instrument which is an exhibit is part ten to a thereof 10(c) purposes.” (Code 81A-110(c)). for all CPA Ann. § In these circumstances is no why there reason the court cannot opening might determine whether result defendant’s favor as as if well the recitals of the defense were set out in the motion itself. require repeated To to be these full in the motion is but a redundancy, encumbering the record thing, —a useless law require, does and which recognized. CPA has Manor v. State, (3) Cf. 223 Ga. 594 431); Locke, Irvin 289). The along reference to filed defense, with incorporate was sufficient to part as As motion. held *5 (95 SE App. (2) McHan, 22 Ga. v. Maddox Co. Coffee meri- a plea presenting filed 736): duly a defendant “The alleged the forth action, setting fully and defense to the torious to defense, constituting which was his facts referred a and thus made him judgment against to set aside motion the the itself that the motion disclosed part motion, said so . It relied upon. specific and character of the defense nature connection, necessary further, in this go thе to was not for court defense good meritorious legally than to determine that alleged (Emphasis supplied.) by was the movant.” (b) that was Nor is there contention the motion merit the de- the was defective because the defense not verified. Since mo- effectively incorporated fense was into the and the made, objection tion was verified in a form to no which no the is trial court there was contention unfounded. In the objection or on to motion to strike the defense or the motion verification, ground the of lack of or of verification defective pass specif- trial this upon question, the court did not but ically grounded on its decision another reason unconnected with ground. this If lack there- there was defect verification or of, one, timely objеct it was failure to waived amendable (Ward 899); Boyd v. Frick Co., 95 Ga. SE Edwards v. Co., 34)), 136 Ga. will not court this alleged the consider formal since the sole defect reason for failing upon to the open ground. Early default was another (1) (82 Hampton, 669); Boyd 15 Ga. Edwards v. is limited 733, 738, supra. appellant on his “The appeal grounds objection the to properly presents which he Lundy (1) (168 the trial court.” v. State, 119 Ga. refusing thе hearing,
3. From at colloquy order open default, judge, certificate trial affirmatively appears that no judge exercised discretion put but passing upon expressly motion default upon judgment the basis that had no discretion. 81A-155(b)) beyond 55(b) (Code Am. dispute CPA § predecessor does confer the trial its (1) at judgment time final for before default (2) providential filing plea, cause excusable preventing of a (3) judge, shall neglect, facts, from all de- proper termine case has made been be opened, albeit the discretion is a one. The order entered finding motion that defendant did not defendant’s recites pending know filing suit until the time an answer after expired. had answer, Under defendant’s it denied agent upon Smith was an whom service of process % *6 could be Smith’s made, tеstimony effect, and under to the same the court authorized find to so as a consideration was for fact in exercise the its discretion. in We note connection this of prior that whereas to the process CPA service of be at- could tacked only by service, a traverse to the of under CPA return 12(b) the attack can simple now be made the by denial in § option at or, writing. answer the of the in pleader, by motion might by defective service have been attacked may and since this is true it be if waived the attack is omitted from other available motions which are filed. Ann. Code A-112(g). It was included in defendant’s motion not to § dismiss because of failure state a claim which relief granted. could be waiver Whether results was when there attack by way of denial in its of the agency answеr the of party upon whom service filed made, anterior to the motion dismiss, need not be decided here. Even if that be result, the so that rely upon defendant cannot now the defective service as ground obtaining for action, judge dismissal of was nevertheless entitled to consider the of circumstances whether had there been a defective kept service which the de- fendant learning from of the of the pendency action and which brought about delay making its answer, along whether with defendant had defense, a valid determining whether justice interest of. opened default should be to allow de- present fendant the defense. “Punctuality is a virtue of high order, but justice truth and even are exalted; more hence the demand for punctuality pleading should not be strict so prevent inquiry as to into truth and to justice deny where the delinquency is reasonably excusable. Therefore, while law requirements punctuality makes it pleading, also usually relieving provision against makes penalties imposed for virtue, a lack this when interests of justice truth and of the general policy said to be may be require it. This policy.” this indicate well opening defaults Our statutes for law. App. 458, Doughty, Ga. Bass v. is such Ann. wording Code
“The 81A-155] [now § § defaults; not opening ample powers as conveys very neglect, broad, and excusable cause, which only providential reaching take out to finally, if broader, but as is still de- if injustice might result conceivable case where every goes say, on to ‘where section opened, the not fault were proper that a case shall detеrmine judge from all facts the exer- rule for apprehend the true made,’ etc. . We been to be discretion conferred cise 81A-155] [now § Ga. 95 O’Connor, laid in Brucker down 245]: [41 discretion, does gives to the a broad this section ‘While exercise arbitrarily, can act but he not mean authority to give him a sound and discretion. does insufficient or reasons. capriciously a default for fanciful gross negligence. It does not neglect not mean Excusable does court, refers disregard process but mean a wilful of. ” failing to answer.’ to cases there is a reasonable excuse *7 (58 278). SE And App. 332, Brawner v. 1 Ga. 337 Maddox, App. 15 Co., Butler & v. Strickland-Tillman Ga. see Co. Hdw. Thain, App. Ins. (82 815); First Nat. Co. v. Ga. 100 SE 107 193 (129 Galloway, App. 683, supra. Ga. 381); 111 Strickland v. action another
That the
been admitted in
agency
have
Glaze
does
аlter the matter.
in the same court
not
pending
(31
O’Connor United States
Bogle,
169);
v.
theory that it de- judge the trial discretion to upon confers a statute upon him a imposes him also question before particular a cide arises; and where the oсcasion duty to exercise when correlative passes judgment to exercise and a discretion judge has upon point a of law solely resting his decision question, on the language ruling showing from the affirmatively and a reversal re- whatever, discretion will he failed to exercise upon rehear matter and it on its pass direction to sult with legal ground judgment was rested was if on which the merits him. The еvidence here not demanded the evidence before motion to did demand a denial default. guide judicial “When invoked to action a sound as means arbitrarily that is to exercised not discretion, say, discretion wilfully, regard right equitable what but with to is under law, directed by the circumstances the reason and just Langnes result.” v. Green, conscience of (51 520). 243, And v. 531, LE see Miller 282 U. S. SC 75 48). Wallace, appeаl judge’s 484 ASR “An Ga. judicial appeal is conscience.” v. discretion his Griffin (5) (77 State, 1080); Butler v. Co. Strick Ga. SE (2) (82 815). land-Tillman Hdw. Cf. 15 Ga. Culpepper, Forrester v. principle frequently applied
This the judge been injunction fails cases, to exercise discretion and a clear pronouncement Stribbling Georgia of it & appears R. (3) (78 42): Power Co., 139 “The presiding judge, injunction grant having refusing prayed, stated in his concluded that order he had he had 'no premises,’ having ruling based his on an erroneous view of n thelaw which thought apparently him, concluded and not injunction full consideration the application of. law his judgement reversed, issues with di fact, of. *8 upon rection to application rehear the and its merits.” pass on reality or worth that the is pend- unless one is informed matter ing appear can choose for himself or default, whether to acquiesce or contest.” Mullane &c. Co., v. Central Hanover Bank (70 865). 306, 339 652, U. S. 314 SC 94 LE
211
(57
(7)
SE
128 Ga.
Wadley
R.
705
Hill v.
Sou.
Accord:
(200
(2)
SE
312
County McCorkle,
v.
187 Ga.
Marion
795);
(21
848);
SE2d
429
Waites,
427,
v.
194 Ga.
Ballard
285);
(2)
v. Rawl-
232); Giles
(95
Spires Wright,
v.
discretion (90 672)); (Carter App. 20 12, Ga. SE2d State, certificates v. 93 (Fears State, 102 Ga. v. regulation execution sale of an (29 (5) assuming general superintendence 463)); 274 SE (Loomis 78 State, v. litigation before him and control of the motion overruling a App. 153, (51 13)); Ga. SE2d (138 (Scribner App. Adams, for new trial v. Ga. (45 Thompson Warren, 912)); 264); v. considering opposition Ann. 110-1207 under Code affidavits in date judgment prior' served to the summary motion for hearing (Harrington App. 116 Ga. Frye, v. 84)). State, Loomis v. 78 Ga. it wаs stated in Thus, 153, County, Hill, Ballard, Marion 164, supra, citing Stribbling, Spires, upon all that Fears, supra, “where, question exercise raised, judge the trial discretion to judgment resting solely passes question, decision upon point showing from the affirmatively language law ruling failed to exercise he discretion whatso- ever premises, rule of discretion does not apply; and legal ground if judgment on which the was rested was er- roneous, Harrington Frye, reversal will result.” And v. 756, supra, 116 Ga. was stated statute “[a] confers discretion to decide questions procedure imposes duty in cases tried before him a correlative exercise such discretion when occasion arises.”2 principle applies Rules, Federal
This under the hence under CPA. In H. Fischer Lumber Co., United v. A. 162 F2d States arbitrary capricious use,
2 An or' an abuse of equivalent failure to exercise it at all. South View Cemetery Hailey, Assn. *9 provided is held that where it was
872, 874, in the acts, exercise judge by the rules and by law or premise that he has but on the erroneous discretion, of that effect, requiring reversal. See to same doing, he errs in none, so Bank of Ins. Nat. Cleve American Life Co. v. Central General Co., 175 Illinois R. land, (4); F2d Marsh v. Cent. Corp. Pepper, 187 F2d 71 (4); F2d 498 Commercial Credit (3-5). judge was authorized to the default for reason
Since the in and thus was not as a mat- statute, stated concluded ter law, it was for him to to exercise dis- error fail upon in motion; and, in with ruling cretion accordance judgment the above cited is authority, reversed with direc- pass upon tion to the motion and it on its merits. rehear urged required by It is that a different result is our decisions Express Georgia Highway Do-All Co. v. Chemical 429) App. 736 Jordan v. Clark, agree. cannot We Georgia The record Highway Express discloses 1968, reciting motion to the default was filed March only good that “defendant has a There meritorious defense.” any other reference to it. An no defense in order was opening April 13, entered 1968. A defense was April 15, filed Consequently, 1968. as was stated in the precedent opinion, opening “a condition the default [as required Code Ann. met.” 81A-155(b)] under was not Mo- vant had not done that was necessary which to invoke the presented nothing way court’s discretion. He of a de- opening fense the default. until have been should after prior opening done to the might so that the court examine and see whether apparent there was a merit, defense of a de- termination court could discretion, its exercise granting appeared motion if the defense merit have if it denying Obviously, did not. needs the defense consideration with the along intent of appearing the law that he should have it. Facts in the record, here, which need not be recited indicate that there was a lack neglect, upon of excusable which movant relied. had been there the motion
In it was asserted Jordan copies of the served with the defendant was when confusion subject the same involving two cases process in petition and pointed it was default, but go in allowed to matter and one was reading petition a casual that “Even in our opinion out . separate action. it is a case discloses present to disclose this court nothing before There is record with the failing comply any legal excuse basis sound *10 neglect is inexcusable . His summons. . mandate of the authority open has no trial court and . . gross, for the a reasonable excuse short of for reasons fall which default easily distinguish- are Both cases negligent failure to answer.” able. J., J., Jordan, P.
Judgment Bell, P. reversed with direction. J., Pannell, Deen Felton, concur. C. Whitman, JJ., Hall and Quillian, JJ., dissent. this case dissenting. cаnnot conceive how Judge, I Deen, Express v. Highway overruling can be reversed Ga. without 429) (165 Do-All Chem. Ga. Jordan v. Ga. Clark, agent Smith the authorized
The facts of this case are: was company. He was for service the defendant insurance companion Thinking they were served with two actions. principal. Thirty negligently only same he his forwarded one to (which 1968) days filing after the case was Decеmber on open was The motion to the default filed on default. was January days suit filed. The motion did 28, 52 after the was not set meritorious defense. out a incorporated
It was not reference into the motion. Highway 1. situation is identical This with the one Express, where the defendant, vacate, motion to in a also court, including stated that had meritorious defense. The Judge Eberhardt, held: “The motion tо vacate defendant’s only good. states has a and meritorious defense defendant regarding to the declaration. facts defense are No set only this All the set forth, conclusion. facts forth relate to transpired form ground events which and which certain based, neg- is i.e., which the motion to vacate excusable default opening the was precedent a condition leсt. Thus matter.” had no discretion and the trial met open the default. defendant made a motion Here the also filing was in the motion that he mere fact that he stated pleadings part pleadings not make the defensive defensive does case, the that, I this conclude under motion. therefore holding. in so court had discretion and was correct no however, we are Highway Express оverruled, 2. If Ga. Clark, supra, situation. In Jordan met with identical another that movant ground motion to the default plead- the service with service of petition confused “had ac- having caption” ings companion in a case similar attorney in The court in cordingly not contact his did time. reason holding opened for this the default could not be 245) O’Connor, “In Brucker v. stated: reading a party that if a Supreme Court made clear at- wrong pays therefore writ, reaches the conclusion and no neglect is in- process answer, tention to the and fails to authority gross, and that the trial court no excusable short of a for reasons fall reasonable negligent answer.” excuse for the failure to agent defendant, being In this case the authorized *11 served, companion cаse, the case with a properly confused paid no to the wrong conclusion and attention reached the Supreme this court and the process. such event both Court In have ruled the trial court no default. granted. should be motion rehear Chief, Judge am state and Judges
I Felton authorized Quillian concur in this Pannell dissent.
44257. INSURANCE COMPANY OF NORTH AMERICA
et al. v. DIMAIO. judge. The trial court set aside and reversed an Whitman, Compensation the Workmen’s Board and award of remanded application board for the matter to the consideration of