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Action on note. Fulton Civil Court. Before Judge Bradford.
1. The plaintiff having met the requirements of Code 81-401, the defendant's unverified answer was subject to being dismissed.
2. It was not error for the trial court to fail to reconsider its order dismissing the defendant's answer to the petition.
3. The trial judge erred in granting a default judgment while a demand for a jury trial was pending.
Suit by verified petition was filed on July 10, 1968, by LeFevre Sound Studios, Inc. (hereinafter referred to as LeFevre) against Sing Recording Co., Inc. (hereinafter referred to as Sing) for the balance due on the promissory note executed by Sing. LeFevre's petition recited that Sing was a corporation incorporated in Fulton County, Georgia, and was subject to the jurisdiction of the court having a place of business at 1919 Gas Light Tower, Atlanta, Georgia. Sing's President, Joel E. Gentry, had testified in March 1969 in another matter that 1919 Gas Light Tower was the place of business of Sing in Georgia.
The office of the Marshal of the Civil Court of Fulton County informed counsel for LeFevre sometime between July 15, 1969 and August 4, 1969, that all attempts to serve Sing at 1919 Gas Light Tower had failed, that each time the marshal went to that address no person in the office would admit being an agent of Sing. On August 4, 1969, the marshal's office advised it was unable to serve Sing as Sing had "moved to Nashville."
On August 5, 1969, articles of merger were filed in Fulton Superior Court, merging Sing and two other corporations and changing the name of Sing. R. Bradley Egerton, at this time attorney for Sing, was listed in the agreement and plan of merger as a director of the merged corporation. The newspaper advertisement, required by the Georgia Business Corporation Code, stated that the registered office of the merged corporation was 1516 Hawkins Street, Nashville, Tennessee.
On August 20, 1969, Mr. Egerton, then counsel for Sing, accepted service of process of the suit; service was accepted in the courtroom of the Fulton Superior Court as LeFevre had presented a restraining order and complaint to Judge Alverson petitioning for the appointment of a receiver for Sing and for restraining order against Sing from removing any of its assets from the State of Georgia. Upon the acceptance of service by Mr. Egerton in this case, the court refused to grant the temporary restraining order and the complaint for the appointment of a receiver was not filed by LeFevre.
Sing did not answer the suit within 30 days as required by the Georgia Civil Practice Act (Code Ann. 81A-112 (a); Ga. L. 1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106), and went into default on September 19, 1969. Some fourteen days after the case had been in default, Mr. Egerton paid the costs in the case and filed an answer which was not verified as required by Code 81-401. LeFevre made a motion against Sing to strike the answer; the motion had attached thereto a certificate of service of counsel for LeFevre stating that he had mailed a copy of said motion to Mr. Egerton.
On November 13, 1969, the motion came on regularly to be heard on the motions calendar in the Civil Court of Fulton County after appearing in the Fulton County Daily Report for the dates, November 3, 1969 and November 7, 1969. On the call of the case, there was no answer from Sing. Counsel for LeFevre called the office of Mr. Egerton and was told by the person who answered the telephone that Mr. Egerton was in court. Thereafter hearing was had on LeFevre's motion to strike and the motion was granted and the answer of Sing was stricken.
On November 28, 1969, after the case had been published on the default calendar but prior to default judgment being entered, the law firm of Huie & Harland filed a motion for reconsideration requesting that the lower court reconsider its order of November 13, 1969, striking Sing's answer.
On November 29, 1969, Mr. Egerton filed a motion to vacate the order and judgment of the court of November 13, 1969, on plaintiff's motion to dismiss defendant's answer. Thereafter. the law firm of Huie & Harland made a motion to strike Mr. Egerton's motion to vacate order and judgment of the court of November 13, 1969, on plaintiff's motion to dismiss the defendant's answer. It was alleged that at the time Mr. Egerton filed the above mentioned motion, he was not attorney for Sing authorized to plead in its behalf, as he had been dismissed on November 28, 1969. Subsequently, Sing filed its first amendment to its answer.
On December 18, 1969, the trial court entered an order granting the motion to strike filed by the law firm of Huie & Harland which struck the motion to vacate the order and judgment of the court of November 13, 1969, on plaintiff's motion to dismiss defendant's answer filed by Mr. Egerton on November 29, 1969.
On December 23, 1969, after argument of counsel, the trial court overruled Sing's motion for reconsideration, overruled Sing's motion to open the default and granted LeFevre's motion for a default judgment and entered judgment on behalf of LeFevre. Sing filed its motion for a new trial which motion was overruled.
1. The appellant contends the trial judge erred in striking its answer which was not verified. The petition had attached an affidavit of the president of the plaintiff corporation stating the facts alleged in the petition were true. Thus, the plaintiff having met the requirements of Code 81-401 the answer was subject to being dismissed.
2. The second enumeration of error assigns as error the overruling of the appellant's motion urging that the trial court reconsider its order striking the answer to the petition. The defendant argues that the defendant's counsel was incapacitated because of illness on the day of the hearing. However, there was no showing that the illness was such that it prevented counsel from notifying the court of his condition. Sims v. Sims, 135 Ga. 439 (2) (69 SE 545); Green v. Whitehead, 204 Ga. 274, 275 (49 SE2d 527).
The defendant also insists that omission to verify the answer was an amendable defect. With this we agree; however, no such amendment was offered between October 8, 1969, the date the motion to strike the answer was filed and a copy mailed to the defendant's attorney, and November 13, 1969, the date of the hearing on the motion.
The overruling of the motion to reconsider was not error.
3. Enumeration of error number 3 complains that the trial judge erred in granting the default judgment while a demand for a jury trial was pending. The Act of 1935 (Ga. L. 1935, pp. 500, 503) amending the statutes creating the Civil Court of Fulton County (formerly Municipal Court of Atlanta) provides: "A jury trial, once demanded by either party, shall not be waived except by written consent of the opposite party."
The record in the case sub judice shows that a demand for a jury trial was pending and no waiver by the defendant appears to have been filed. Under the holding in Edwards v. Washington Nat. Ins. Co., 101 Ga. App. 138 (2) (113 SE2d 178), the granting of the default judgment was error.
Counsel for the appellee contends that passage of the Civil Practice Act would make the above quoted statute inoperative. With this contention we cannot agree. Code Ann. 81A-155 (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238) dealing with the taking of default judgments is substantially the same as Code 110-401 as amended which was repealed by the Civil Practice Act.
The overruling of the motion for new trial was error.
Judgment reversed. Bell, C. J., and Whitman, J., concur.
Poole, Pearce & Cooper, Robert R. Smith, for appellee.
Huie & Harland, Terrill A. Parker, for appellant.
Friday May 22 17:08 EDT

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