Strickland v. Galloway

Nichols, Presiding Judge, dissenting.

“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 *687proceed with the trial.’ See Code Ann. Supp. § 110-404. ‘The Act of 1946 (Ga. L. 1946, pp. 761, 778), amending the Code, § 110-404, to the extent of providing that a default may be reopened at any time before final judgment, did not enlarge the discretion of the trial judge, which must always, be exercised in accordance with law.’ Green v. Whitehead, 204 Ga. 274, 276 (a) (49 SE2d 527). ‘While this section gives to a judge a broad discretion, it does not mean that he can act arbitrarily, but that he may exercise a sound and legal discretion. It does not give him authority to open a default capriciously or for fanciful or insufficient reasons. “Éxcusable neglect” does not mean gross negligence. It does not mean a wilful disregard of the process of the court, but refers to cases where there is a reasonable excuse for failing to answer.’ Brucker v. O’Connor, 115 Ga. 95, 96 (41 SE 245). . . Even illiteracy does not excuse one from using diligence to ascertain correctly the contents of a notice duly served. Sutton v. Gunn, 86 Ga. 652, 658 (12 SE 979).” Mc-Murria Motor Co. v. Bishop, 86 Ga. App. 750, 754 (72 SE2d 469).

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 *688Staff of Glynn-Brunswick Memorial Hospital, and by the sickness, operation and death of his great-aunt, Mrs. Mamie Knox, to the point that he had reached mental exhaustion. Defendant found that he was unable to care for and attend to his personal business and was mentally unable to cope with many matters not relating directly to his obligations to his patients and the hospital. Defendant’s mental condition in this respect caused him to fail to answer plaintiff’s complaint within the time required by law, but defendant believes, as is set forth below, that he has a meritorious defense to plaintiff’s complaint and is ready to proceed with the trial of this matter immediately.”

. 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.