concurring specially.
I agree wholeheartedly with the majority opinion and write this special concurrence to address the position taken by the dissent. Apparently, the dissent would hold that it would be unjust to allow plaintiffs to retain their verdict just because defendants did not answer as required by law. Should we likewise allow a horribly injured plaintiff, who failed to file his complaint within the statute of limitation because of a similar confusion, to proceed with his claim against
*591Decided March 12, 1996. Phillips & Phillips, Arthur L. Phillips, for appellants. Bird, Ballard & Still, William Q. Bird, Karin L. Allen, Dehler & Griffin, Maryellen Griffin, Lynn H. Whatley, for appellees.the tortfeasor because otherwise an injustice would result?
We are a court of law for the correction of errors and we have no equitable jurisdiction. The trial court has discretion to open default under OCGA § 9-11-55 (b) not the appellate court. In Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993), the trial court exercised its discretion and opened defendants’ default and this Court affirmed the ruling. In this case, the trial court exercised its discretion and refused to open the default and this Court should similarly affirm. OCGA § 9-11-55 (b); Mills v. State, 188 Ga. 616 (4 SE2d 453) (1939).
I am authorized to state that Judge Ruffin joins in this special concurrence.
Beasley, Chief Judge, dissenting.I respectfully dissent. The remedial rule allowing the opening of default is to be liberally applied. Ewing v. Johnston, 175 Ga. App. 760, 764 (334 SE2d 703) (1985). The circumstances in this case are sufficiently similar to those in Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562 (434 SE2d 124) (1993), that they ought to be treated the same. Both involved two suits and lay confusion in believing there was one. All the requirements of OCGA § 9-11-55 (b) were met, and injustice is done if defendants must pay well over $1 million if there was, in fact, no negligence.
Were it not for this fundamental error, I would agree with the remaining three divisions in the opinion.
I am authorized to state that Presiding Judge Birdsong joins in this dissent.