Perrin v. Kilgore

On Motion for Rehearing.

Appellant argues in her motion for rehearing that our decision in Division 1 of this case “implicitly announces that a case in which a *302default judgment has been rendered is final, absolute and beyond attack for any reason.” This argument is wholly without merit. Although this case was in default at the time appellant was denied her motion to dismiss, no judgment had yet been entered. Considering the grounds asserted in her motion, we view it as one seeking dismissal of the complaint for failure to state a claim upon which relief can be granted, i.e., a motion for judgment on the pleadings. Snooty Fox, Inc. v. First American Investment Corp., 144 Ga. App. 264 (241 SE2d 47) (1977). Since appellant was indisputedly in default at the time she moved to dismiss the complaint, every item and paragraph of the complaint was deemed “supported by proper evidence.” Code Ann. § 81A-155 (a). Under these circumstances the proper vehicle by which appellant should have attacked the sufficiency of the complaint was via a motion to open the default in accordance with Code Ann. § 81A-155 (b). Accordingly, appellant was not permitted to circumvent her failure to file an answer by contesting the merits of appellee’s claim via a motion for judgment on the pleadings.

Motion for rehearing denied.