Gordon v. Spence

Pannell, Judge. The appellee defendant filed a motion to open a default in an action brought by Horace Gordon, appellant, attaching thereto her defenses and announcing for trial instanter. The grounds in the motion were as follows: "Defendant shows the court that she has a valid defense to said claim, but has not filed a defense or answer by and through excusable neglect in that she was unaware of the pendency of the suit because heretofore the plaintiff had filed case number 12,152 in Gwinnett Superior Court against Spence Monument Company, which is no firm in existence that can be sued at law and said case had not been disposed of by judgment or otherwise but defendant was made aware that the case was not pending against her and she thought and honestly believed and was under the apprehension that the file 12,322, which is the case currently pending in court, was merely an attempt on the part of the plaintiff to renew and breathe life into the old case, and she was truly under the misapprehension that no case was pending in court for which judgment could be obtained . . . Further, defendant shows the court that since said time the plaintiff has come by and spoken to her about having the monument sued upon replaced on the gravesite and has made no mention to her of any lawsuit pending or discussed it, but has made an effort to work out some terms whereby the monument may be returned to the gravesite . . . Defendant shows that the actions of the plaintiff were designed to lull the defendant, and did, in fact, cause the defendant to believe that no case was pending [385] in court against her and that she was not required to file an answer since she not being familiar with the niceties of legal terminology and that her neglect is excusable under the circumstances.” The record shows that the defendant was properly served with summons and complaint. The trial judge sustained the motion and opened the default and the plaintiff appellant appealed. Held: Argued June 28, 1971 Decided September 7, 1971. William L. Skinner, for appellant. Craig & Reeves, Gene Reeves, Jr., for appellee. This case is controlled adversely to the appellee by the decision of this court in Jordan v. Clark, 119 Ga. App. 18 (1) (165 SE2d 922) and the decision of the Supreme Court in Jackson v. Grant, 152 Ga. 751 (111 SE 192). The trial court erred in granting the motion to open the default as, under these decisions, the negligence in failing to respond to the summons was inexcusable and gross. Judgment reversed. Bell, C. J., and Deen, J., concur.