Belle Interiors, Inc. v. Norman

Stolz, Judge.

Belle Interiors, Inc. sued James L. Norman and Janice Norman on a retail instalment contract and note in the Superior Court of McDuffie County. Contemporaneously with the filing of its suit, the plaintiff filed certain requests for admission of facts and genuineness of documents which were served on the defendants at the time the complaint was served. The defendants filed a timely answer to the complaint denying its material allegations, and also alleged a failure of consideration. The defendants did not answer the plaintiffs requests for admission. The plaintiff subsequently filed a motion for summary judgment based on the pleadings (including the unanswered requests for admission) and affidavits attached thereto. The hearing on the motion for summary judgment was set for March 29, 1973, at 10:00 a.m. in the Superior Court Judge’s Chambers in the Courthouse in Thomson, Georgia. On March 13,1973, the case came on for trial (without the plaintiff or its counsel being present) with the jury returning a verdict for the defendant and judgment entered thereon. The plaintiff moved the court to set aside the judgment on the ground that it was not notified that the case had been placed on the trial calendar as provided, in Code Ann. § 81A-140 (c) (Ga. L. 1966, pp. 609, 653; 1967, pp. 226, 245; 1968, pp. 1104, 1108) and supported the same with its counsel’s affidavit to that effect. A hearing was held on the motion to set aside on March 29,1973, at which time testimony was presented under oath by the clerk of the superior court that, prior to each term of court, a docket of those cases *670scheduled for trial is prepared and copies thereof with a cover letter are mailed to counsel in all cases. The clerk further testified, "I can say to the best of my knowledge and belief and in accordance with the general practice of my office that a copy of the letter and calendar were mailed to Mr. Shafer [plaintiffs attorney]. It is not my practice to fail to mail to any attorney.” A deputy clerk testified that she addressed the envelopes and mailed out the court calendar with cover letter to all counsel (including plaintiffs), that the envelopes had a return address thereon, and that the letter had not been returned to the clerk’s office as undelivered. The trial judge denied the motion to set aside, and the plaintiff appeals. Held:

Argued November 8, 1973 Decided January 7, 1974 Rehearing denied January 29, 1974 William G. Schafer, for appellant. Walton Hardin, for appellees.

"(a) . . . All civil cases, including divorce and other domestic relations cases, shall be triable any time after the last day upon which defensive pleadings were required to be filed therein: Provided, however, the court shall in all cases afford to the parties reasonable time for discovery procedures, subsequent to the date that such defensive pleadings were required to be filed, (b) . . . The Judges of any court of record may, on reasonable notice to the parties, at any time, either in term or vacation, and at chambers, in any county in the circuit, hear and determine by interlocutory or final judgment any matter or issue, where a jury trial is not required or has been waived: Provided, however, nothing herein shall authorize the trial of any divorce case by consent or otherwise until after the last day upon which defensive pleadings were required by law to be filed therein.” Code Ann. § 81A-140 (a, b) (Ga. L. 1966, pp. 609, 653; 1967, pp. 226, 245; 1968, pp. 1104, 1108). Under the facts sub judice the requirements of the Code were met. Tootle v. Player, 225 Ga.431 (169 SE2d 340). The trial judge did not err in overruling the plaintiffs motion to set aside.

Judgment affirmed.

Eberhardt, P. J., and Pannell, J., concur.