152 Ga. App. 417 | Ga. Ct. App. | 1979
Plaintiff Jackson, appellant here, sued Bekele and the Persian Townhouse Apartments for torts and damages arising from wrongful eviction and malicious abuse of process in defendant’s having executed a dispossessory warrant against her. Plaintiffs complaint alleged that at the time of defendant’s actions against her for eviction, no rent was due and owing and she was in compliance with all of the provisions of the lease. From the record on appeal and those allegations of the parties which are uncontroverted and consistent with the record, the following profusion of procedural irregularities appears from the proceedings below: Appellee Bekele, through his attorney of record, did timely answer plaintiff Jackson’s complaint as is reflected by an entry in the clerk’s docket, but the answer was lost or at least was not
In the meantime, on May 26, 1978, Bekele, whose answer to the plaintiffs complaint had been reinstated, moved for summary judgment on the grounds that Jackson had sued the wrong parties, and gave in support thereof the affidavits of Bekele and his attorney to the effect that Bekele was not doing business as the Persian Townhouse Apartments but was only the resident manager. This motion for summary judgment by Bekele was certified as served by mail on Jackson’s attorney on May 26,1978; nowhere does it appear that a date was set for hearing on the motion for summary judgment. Eight months later (and 21 days after the case came back to the trial court on remittitur from this court) on January 5, 1979, Bekele filed a motion to compel production of documents, namely, plaintiffs rent receipts and cancelled rent checks; the "Rule Nisi on Motion to Compel” set the hearing date on that motion to compel for February 16, 1979. On February 16, at the hearing on Bekele’s motion to compel, Bekele’s attorney presented and filed his personal affidavit "in support of motion for summary judgment” showing that he, the attorney, had a proprietary interest in the defendant apartment complex, and had custody of the records of the apartment complex and that according to his own knowledge, plaintiff Notria Jackson, who rented an apartment there, had moved and left said apartment vacant for the duration of the lease, owing just rent and future rent; and further, that defendant Solomon Bekele had issued a dispossessory warrant for nonpayment of rent and plaintiff did not file any answer nor pay any sum due in the registry of the
1. Jackson advances as error, first, the trial court’s failure to recognize the leave of absence which had been granted her attorney for a period including the day set for hearing on defendant appellee’s motion to set aside the verdict and judgment of April 5, 1978; and, secondly, the consequent setting^ aside of the verdict in plaintiffs absence and on grounds unjustified and contrary to the evidence appellant would have presented at that hearing. It would, ordinarily, be error to proceed in the case while plaintiff should have been protected by leave of absence of her attorney. Eatonton Oil &c. Co. v. Ledbetter, 174 Ga. 715, 719 (163 SE 891). Appellant Jackson moved to set aside that order setting aside the verdict and judgment, on grounds that her attorney had been protected by leave of absence and that the order was contrary to evidence appellant would have presented; however, appellant submitted a brief to the trial court in support of her motion which argued only that ground based on the conduct of the proceeding while plaintiffs attorney was on leave of absence. Neither the pleadings before the trial court, nor any before this court, show any matter of substance which would render the court’s order setting aside the verdict an abuse of discretion or harmful error. Defendant was not in default, but through accident and mistake not shown to be his own, was prevented from defending his cause, and that alone is sufficient to have the verdict against him set
2. The grant of summary judgment to appellee Bekele was error. Bekele filed motion for summary judgment in May, 1978, on grounds that the wrong parties had been sued; no hearing was set and nothing further was done when the case was automatically superseded by Jackson’s first appeal on June 16, 1978. Eight months later, and twenty-one days after the case returned to the trial court on remittitur from this court, Bekele filed a motion to compel production of documents. The summary judgment in his favor was obtained by Bekele in Jackson’s absence at the hearing on motion to compel, without notice to Jackson, without notice that summary judgment would be heard, without notice that a judgment for money damages would be sought on grounds entirely distinct from those plead in the summary judgment motion in May, 1978, and by support of an affidavit of which Jackson had likewise no notice. We have no difficulty in holding the grant to be error (Code §§ 81A-156 (c); 81A-107 (b) (1); 81A-105 (a)). We reverse, and remand the case to the trial court with the case in its posture at the motion to compel production of documents filed in January, 1979.
Judgment reversed and remanded with direction.