SANDERS v. AMERICAN LIBERTY INSURANCE COMPANY., 225 Ga. 796, 171 S.E.2.d 539 (1969)
Linked as:
Summary
Certiorari to the Court of Appeals of Georgia--120 Ga. App. 202 (170 SE2d 249)., Judgment reversed. All the Justices concur. Felton, J., disqualified.
Summary
Certiorari to the Court of Appeals of Georgia--120 Ga. App. 202 (170 SE2d 249)., Judgment reversed. All the Justices concur. Felton, J., disqualified.
Text
Certiorari was granted in the present case to review a holding of the Court of Appeals that the trial court erred in refusing to exercise a discretion in ruling upon the motion of American Liberty Insurance Company to open a default and permit the filing of defensive pleadings.
The motion to open default alleges that two complaints were filed against the movant: one by Z. B. Sanders bearing "Civil Action No. 3496" and the other by Maggie Sanders bearing "Civil Action No. 3497." It was further alleged that both complaints were served by the Deputy Sheriff of Atkinson County upon 5/8 Smith, an insurance broker, through whom a policy of insurance had been issued to Z. B. Sanders, that said 5/8 Smith was under the misapprehension that there was only one suit and that one complaint was for his office use and that accordingly he only forwarded to the movant the complaint in Civil Action No. 3496, that upon receipt of said complaint movant referred the same to its attorney who filed defensive pleadings in that action, that on January 23, 1969, movant learned for the first time of Civil Action No. 3497, and that more than 45 days had expired and the same was in default, and that said case is in default through no fault of the movant's but solely through the fault of the aforesaid 5/8 Smith who failed to forward notice of said complaint to movant. Held:
Pretermitting the question of whether or not the movant alleged in such motion a meritorious defense to said complaint, yet under Code Ann. 81A-155 (b) the facts alleged to authorize the opening of the default for providential cause, excusable neglect or to show otherwise a proper case to have the default opened presented nothing which would authorize the trial court to exercise a discretion in the premises. In Brucker v. O'Connor,
Jack J. Helms, for appellant.
1969
Sponsored links
