Strother v. Hill Aircraft & Leasing Corp.

Webb, Judge. Hill Aircraft filed suit against Strother for breach of contract. Strother filed an answer and counterclaim. Interrogatories were submitted and responded to by both parties, and Strother also responded to a request for admissions served by the plaintiff. The parties then entered into an agreement to prepare a pre-trial order, which was submitted to the court, and the trial was set on the calendar. On January 12, 1977, the trial judge granted Hill’s motion to strike Strother’s answer and counterclaim when neither Strother nor his counsel responded to the call of the case and the judge had not heard from anyone in regard to the absence, and entered default judgment. Strother filed a motion to set aside this judgment, which the trial court treated as one to open default, and denied.1 Argued January 12, 1978 Decided February 8, 1978 Rehearing denied March 2, 1978. Scheer & Eisner, Michael Weinstock, for appellant. Thompson, Stovall, Stokes & Thompson, James F. Stovall, III, for appellee. 1. Hill’s motion to dismiss this appeal is dénied. 2. We find no error in the application of the "three-minute rule” (Rule 41 of the Rules of the superior court, as codified by Code Ann. § 24-3341) in this case. See Schwartz v. C. & S. Mtg. Co., 142 Ga. App. 682, 683 (3) (236 SE2d 856) (1977); Lester v. Master Charge, 141 Ga. App. 593 (234 SE2d 164) (1977); Perry v. Dudley, 141 Ga. App.455, 457 (4) (233 SE2d 849) (1977) and cits.; George v. Handshakers, Inc., 140 Ga. App. 641, 642 (1) (231 SE2d 575) (1976). 3. Default judgment was also authorized since the complaint was for a sum certain remaining to be paid under the contract, which Strother, in fact, did not deny. Henry v. Adair Realty Co., 141 Ga. App. 182, 183 (1) (233 SE2d 39) (1977); Galanti v. Emerald City Records, 144 Ga. App. 773 (1978). While the counterclaim alleged fraud, which was not an unliquidated claim, the striking of the counterclaim was not enumerated as error. Judgment affirmed. Quillian, P. J., and McMurray, J., concur. Footnotes [1] For previous appearance of this case see Strother v. Hill Aircraft &c. Corp., 142 Ga. App. 206 (235 SE2d 647) (1977).