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Lawskills.com Georgia Caselaw
LOVELESS v. CONNER.
42007.
BELL, Justice.
Equity. DeKalb Superior Court. Before Judge Weeks.
The issue presented by this appeal is whether the Superior Court of DeKalb County was authorized to set aside a judgment of the State Court of DeKalb County on the ground that publication of the state court calendar was legally insufficient notice of the trial date. We hold that the superior court was not authorized to set aside the judgment on that basis.
Loveless contends that the holding of Spyropoulos is inapposite to a complaint in equity. We agree. In that decision, we held that a trial court is authorized to grant a motion to set aside under OCGA 9-11-60 (d), or a new trial under OCGA 9-11-60 (c), where the circumstances warrant such relief. Here, however, the superior court was not the court of rendition, and hence could not vacate the state court judgment pursuant to OCGA 9-11-60 (c) or (d). OCGA 9-11-60 (b). Thus, the holding of Spyropoulos is not support for the superior court's ruling in the instant case.
There remains the possibility that the superior court's judgment can be affirmed as having reached the right result pursuant to OCGA 9-11-60 (e), which was the subsection relied upon by appellee. We hold in the negative. Evidence that the plaintiff in equity did not receive actual notice of a former lawsuit does not constitute "fraud, accident, mistake, or the acts of the adverse party," and hence is not a cognizable ground to vacate a judgment in a suit brought pursuant to OCGA 9-11-60 (e). Accordingly, the superior court should not have set aside the state court's judgment, and we therefore must reverse the superior court's ruling.
Appellant makes several other arguments, but they are mooted by the foregoing holding.
Notes
1  As with Conner, the clerk did not attempt to personally notify Loveless and Thiele of the trial date. Unlike Conner, they telephoned the clerk to learn the date.
2  Conner's complaint consisted of several claims. The superior court's judgment granted relief only as to one of these claims, and implicitly denied the remaining theories of recovery.
H. Douglas Hanks, Delmar J. Conner, for appellee.
Donald E. Loveless, pro se.
DECIDED SEPTEMBER 5, 1985.
Thursday May 21 16:46 EDT


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