240 Ga. 543 | Ga. | 1978
This is an appeal from the denial of a motion to open default judgment in a divorce action. No defensive pleadings were filed one day after the time allowed, and the case was placed on the uncontested calendar. Counsel for appellant was in the courtroom when the case was called but did not answer. Final judgment and decree were entered, granting a divorce and ordering the appellee to pay $80 per month child support.
Nine days after the final judgment, the appellant filed a motion to open the default and her answer to the complaint contending a right under § 55 of the Civil Practice Act. On motion filed by the appellee, the trial court dismissed the appellant’s motion to open the default and her answer. The appeal is from this order.
The default provisions of § 55 of the Civil Practice Act (Code Ann. § 81A-155) have no application to divorce cases. Code Ann. § 30-113 (Ga. L. 1895, p. 46; 1958, p. 315; 1967, pp. 226, 246); Jolley v. Jolley, 216 Ga. 51, 52 (114 SE2d 534) (1960); Harrison v. Harrison, 228 Ga. 126, 128 (184 SE2d 147) (1971); Todd v. Todd, 231 Ga. 647, 648 (203 SE2d 480) (1974); Trulove v. Trulove, 233 Ga. 896, 898 (213 SE2d 868) (1975); Oliveros v. Oliveros, 237 Ga. 615 (229 SE2d 415) (1976).
When the proceedings constitute a civil action, not including an action for divorce, the default may be opened as a matter of right by the filing of defenses within 15 days of the date of default upon payment of costs. Code Ann. § 81A-155 (a). During this 15-day period a default judgment in an ordinary civil case cannot be taken.
In a full bench decision, this court held in Hill v. Hill, 234 Ga. 836 (2) (218 SE2d 619) (1975), that: "No defensive pleadings were timely filed by the appellant, the case was
The trial court did not err in denying the motion to open the default and in dismissing the answer of the appellant.
Judgment affirmed.
