dissenting.
In this case, the appellees were originally served with a complaint filed by the appellant in federal court in Texas, with the civil action number 3-91CV2063-G. An answer was timely filed. Approximately one month later, the appellant commenced this action against the appellees in the State Court of Fulton County, with the civil action number 91-VS45311A, involving the same subject matter as the Texas lawsuit. However, the appellees never filed an answer because of its mistaken belief that the Georgia state court action was the same action as the Texas federal court action. I cannot agree with the majority opinion’s finding that under these circumstances, the appellees “reasonably believed that they already had answered the same complaint.”
In Sanders v. American Liberty Ins. Co., 225 Ga. 796, 797 (171 SE2d 539) (1969), the Supreme Court held that the defendant’s explanation that it failed to answer a second complaint because of a mistaken belief that it was the same lawsuit previously answered, did not show “that the defendant’s neglect was excusable, or made a proper case for the default to be opened.” In Sanders, the lawsuits had different plaintiffs but with the same last name, and the actions were filed in the same court, with consecutive civil action numbers, but the Supreme Court was unswayed by such factors.
In the instant case, in mistaking the second complaint filed in the Georgia state court as the same lawsuit previously answered in the Texas federal court, the appellees are in a much weaker position than the defendant in Sanders. The majority opinion rationalizes its acceptance of their explanation by stating that the “proper case” basis for opening default in Sanders was subsequently expanded in Axelroad v. Preston, 232 Ga. 836 (1) (209 SE2d 178) (1974), and Houston v. Lowes of Savannah, 235 Ga. 201 (219 SE2d 115) (1975). However, Axelroad and Houston both merely solidified the “proper case” analysis as a third ground for opening default, and thus approved the consideration of that third ground in Sanders.
The majority opinion attempts to deprecate Sanders by pointing out that in Houston, the Supreme Court overruled Brucker v. O’Conner, 115 Ga. 95 (41 SE 245) (1902), which, according to the majority opinion, was the basis for the holding in Sanders. However, the *565court in Sanders simply held that the facts before it did not establish providential cause, excusable neglect, or otherwise a proper case for opening a default, which was the proper analysis, and merely quoted Brucker as another example of where facts demanded finding the lack of any basis for opening a default. In Houston, the Supreme Court overruled Brucker to the extent that some language contained therein was susceptible of being read as holding that the Code provided only one ground for opening a default, but it did not criticize Sanders.
Decided July 16, 1993. Drew, Eckl & Farnham, Paul W. Burke, Jerry C. Carter, Jr., for appellant. Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, F. Scott Young, for appellees.Sanders correctly identified the three possible bases for opening a default, and is consistent with the rule stated in Axelroad and Houston. However, under the circumstances in Sanders, the Supreme Court concluded that no basis existed for opening the default. As discussed above, the facts in the instant case present a much weaker case for opening a default than those considered in Sanders. Accordingly, Sanders should control the instant case, requiring reversal of the trial court’s order reopening the default in this case. For that reason, I must respectfully dissent.
I am authorized to state that Chief Judge Pope joins in this dissent.