111 Ga. App. 683 | Ga. Ct. App. | 1965
Lead Opinion
Sidney E. Strickland brought an action against Dr. Ben T. Galloway in the Superior Court of Glynn County seeking damages for alleged malpractice. Upon failure of the defendant to file an answer as required by law the case was in default. Section 18 of the Rules of Procedure, Pleading and Practice in Civil Actions (Ga. L. 1953, Nov. Sess., pp. 440, 451; Code Ann. § 110-401). Prior to final judgment, but after the 15 days within which the default could have been opened as a matter of right, the defendant filed a motion to open the default, paid the cost, offered to plead a meritorious defense and announced ready for trial. The motion to set aside the default alleged substantially the following: that
The trial court granted the motion to open the default, the case was tried, verdict and judgment were rendered for the defendant, and the plaintiff brought his case to this court assigning error on the overruling of a motion to dismiss the motion to open the default and to the overruling of his motion for new trial; however, the motion for new trial is abandoned in his brief in this court on all grounds other than as might be affected by the ruling on the motion to open the default. Held:
“At any time before final judgment, the judge, in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on the terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to proceed with the trial.” Rule 21 of the Rules of Procedure, Pleading and Practice in Civil Actions (Ga. L. 1946, pp. 761, 778; Code Ann. § 110-404). The discretion of the trial court to open a default is greater before a final judgment than after, Brucker v. O’Connor, 115 Ga. 95, 96 (41 SE 245), and the above Code section “providing for the opening of defaults, should be given a liberal construction, in the promotion of justice and the establishment of the truth; and the discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff. Thompson v. Kelsey, 8 Ga. App. 23 (68 SE 518); Bass v. Doughty, 5 Ga. App. 458 (63 SE 516); Brawner v. Maddox, 1 Ga. App. 332 (58 SE 278); Polerack v. Gordon, 102 Ill. App. 356; Tucker v. Harris, 13 Ga. 1 (58 AD 488); Gray v. McNeal, 12 Ga. 424; Davis v. Bray, 119 Ga. 220 (46 SE 90); Birch v. Pope, 114 Ga. 334 (40 SE 227).” Tedcastle & Co. v. Brewer & Co., 19 Ga. App. 650 (1) (91 SE 1051). See also Butler & Co. v. Strickland-Tillman Hdw. Co., 15 Ga. App. 193 (82 SE 815); Sherman v. Stephens, 30 Ga. App. 509, 518 (118 SE 567);
Whether or not sufficient facts were alleged to authorize the exercise of discretion by the trial court on the grounds of providential cause or excusable neglect, the facts alleged in the motion for the opening of the default were sufficient to authorize the exercise of the trial judge’s discretion under the third ground “where the judge, from all the facts, may determine that a proper case has been made for the default to be opened.” Butler & Co. v. Strickland-Tillman Hdw. Co., 15 Ga. App. 193, supra; Sherman v. Stephens, 30 Ga. App. 509, 518, supra. No injury to' plaintiff is shown where there was no delay in the trial of the case and where upon the trial there was a verdict for the defendant and the exception to the refusal to grant a motion for new trial is based solely on the alleged error in the antecedent ruling opening the default. See Bradley v. Henderson, 56 Ga. App. 488 (2) (193 SE 79).
Judgment affirmed.
Dissenting Opinion
“1. Code § 110-404, as amended by the act of 1946, provides: ‘At any time before final judgment, the judge, in his discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of a plea, or for excusable neglect, or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and announce ready to
Where a motion to open a default shows as a matter of law that a case is, or is not, made to open a default the trial court has no discretion but must act in accordance with the law. See Butler & Co. v. Strickland-Tillman Hdw. Co., 15 Ga. App. 193 (2) (82 SE 815); Davison-Paxon Co. v. Burkart, 92 Ga. App. 80, 84 (88 SE2d 39).
The affidavit of the defendant physician in the present case shows him to be a busy man. He set forth in detail the number of patients he treated both in and out of the hospital as well as the numerous surgical operations he performed during the forty-five day period when he could have filed an answer as a matter of right. He also set forth various meetings he attended both within and without the State dealing both with his private practice as well as his role as chief of staff of a hospital, and the fact that prior to the service of the petition he performed surgery upon his great aunt who later died causing him great grief. The defendant then alleges: “As a result of the facts set forth in the foregoing paragraphs, defendant shows that he had been mentally and physically burdened by the press of his patients’ care and welfare, by the demands of his medical practice, by the obligations and responsibilities’ imposed upon him as Chief of
. The defendant makes no showing that he did not know of his duty to file defensive pleadings, nor does he show that the “mental exhaustion” prohibited him from carrying on his daily pursuits. The affidavit does show that the defendant made a choice, the choice of continuing his daily pursuits and ignoring the process requiring him to answer the plaintiff’s complaint, which shows no excusable neglect, no providential cause and no proper case for opening the default.
The press of business, even when accompanied by a mistaken belief as to the time when defensive pleadings may be filed is no ground to open a default. See Swain v. Harris, 101 Ga. App. 263 (113 SE2d 467).
The judgment of the trial court overruling the plaintiff’s motion to strike the defendant’s petition to open the default should have been sustained.
I am authorized to state that Felton, C. J., and Frankum, J., concur in this dissent.