Opinion
38359.
DECIDED SEPTEMBER 13, 1960.
Action on insurance policy. Fulton Civil Court. Before Judge Wright. March 16, 1960.
Tindall Tindall, J. D. Tindall, J. D. Tindall, Jr., J. F. Kemp, for plaintiff in error.
Franklin B. Anderson, contra.
The act creating the Civil Court of Fulton County, as amended, gives to a defendant against whom a default judgment has been entered the right to have such default opened on the filing of a proper affidavit within five days from the date of such judgment, and the record showing that such affidavit was field, the trial judge erred in dismissing the affidavit and the motion to set aside the judgment on motion of the plaintiff.
DECIDED SEPTEMBER 13, 1960.
Cleveland Edwards filed an action in the Civil Court of Fulton County against Washington National Insurance Company on an insurance policy issued by the defendant to Roosevelt Edwards, a brother of the plaintiff, which named the plaintiff as beneficiary. The plaintiff filed a statutory demand for a jury trial, but after the defendant failed to file defensive pleadings within the time allowed by law, the plaintiff withdrew the jury demand without notice to the defendant and took a default judgment. The defendant filed a motion for a new trial which the trial court granted. The plaintiff appealed this ruling to the Court of Appeals which affirmed the trial court. Edwards v. Washington National Ins. Co., 101 Ga. App. 138 ( 113 S.E.2d 178). Thereafter, the case appeared upon the default calendar for trial on February 29, 1960, when a verdict in the amount of $650, plus $125 attorney's fees, was rendered and a judgment accordingly entered in favor of the plaintiff. On March 4, 1960, within five days of the rendition of the judgment, the defendant paid all accrued court costs and filed an affidavit to open the judgment and allow defensive pleadings to be filed. On the same date the trial court ordered the default judgment to be vacated and set aside and allowed the defensive pleadings to be filed. On March 7, 1960, the plaintiff filed a motion to dismiss the "affidavit and motion to set aside the judgment" on the ground that no defensive pleadings were filed at the return term, that the affidavit failed to show why and in what manner the defendant failed to file an answer, and that the affidavit disclosed no valid excuse for failing to appear and plead at the proper time. On a hearing, the trial court sustained the plaintiff's motion. To this ruling the defendant excepts, and assigns it as error.
1. The procedural rules of the Civil Court of Fulton County were created by statute and where such rules depart from those prescribed for the courts of general jurisdiction, the statutory enactments for the civil court will prevail, and the mode of procedure used in the superior court is inapplicable. Dodson Printers' Supply Co. v. Harris, 114 Ga. 966 ( 41 S.E. 54); Pickard v. Rich's, Inc., 87 Ga. App. 109 ( 73 S.E.2d 98). (The procedural rule announced in the latter case was ultimately changed by statute, Ga. L. 1956, p. 3271). The act of 1913, as amended, established the basic procedural rules for the Civil Court of Fulton County (Ga. L. 1913, p. 145). The pertinent part thereof applicable for this decision (Ga. L. 1913, p. 145, as amended by Ga. L. 1918, p. 351), is as follows: "That in all cases of default the chief judge of said court, or any other judge acting therefor, may enter judgment without any call of the docket on or after the Monday on which the action in default is returnable, and in all cases, except actions for unliquidated damages, and there is no issuable defense made by the party sued, the plaintiff shall be permitted to take judgment as if each and every item, or paragraph, were proven by testimony; provided, that any party against whom a judgment by default shall be rendered and who shall file with the clerk of said court an affidavit that he has, as he is advised and believes, a good defense, and that he is not seeking to open the default for delay only, may, as a matter of right, have said default opened, and the judgment rendered thereon set aside at any time within five days from the rendition of such judgment; provided further, that if upon the hearing the court shall determine that said default was opened for delay only the judgment shall be entered against such party for double the regular costs." The policy of the court in determining matters similar to the instant case was announced by Judge Powell in Bass v. Doughty, 5 Ga. App. 458 ( 63 S.E. 516), as follows: "Punctuality is a virtue of high order, but truth and justice are even more exalted; hence the demand for punctuality in pleading should not be so strict as to prevent inquiry into truth and to deny justice where the delinquency is reasonably excusable. Therefore, while the law makes requirements of punctuality in pleading, it also usually makes provision for relieving against the penalties imposed for a lack of this virtue, when the interests of truth and justice require it. This may be said to be the general policy of the law. Our statutes for opening defaults well indicate this policy. Therefore, if the language used by the legislature in a special act is ambiguous or doubtful in meaning, the ambiguity and doubt will be resolved against harshness and injustice and in favor of letting the truth be known. Ordinarily, therefore, the court has a discretion in opening defaults, where the defendant tenders a meritorious plea and shows that he permitted the default through what the courts call excusable neglect." The wording of the statute prescribes that within five days after a judgment for default, the defendant may, as a matter of right, open the default and file defensive pleadings. This may be accomplished on the presentation of an affidavit manifesting a belief that a meritorious and good defense is available and that the opening of the default is not for delay only. Such proceeding may be initiated before the default judgment. Colley v. Smith Company, 30 Ga. App. 680 ( 119 S.E. 350). If there is any ambiguity, it must be resolved against the harshness of the statute to prohibit the filing of a defense. The only discretion allowed the trial court is that in the event the default is opened for delay only, double costs may be imposed. The statute does not require the affidavit to show a reasonable or excusable neglect for failing to file defensive pleadings, as is necessary under superior court rules. All that is required is that an affidavit be filed showing, among other things, that a belief of good defense exists. An affidavit meeting the requirements of the statute was filed by the defendant in this case within the time allowed by the statute aforesaid. Accordingly, the trial court erred in sustaining the motion to dismiss "the affidavit and motion to set aside the judgment."
Judgment reversed. Gardner, P. J., Townsend and Carlisle, JJ., concur.