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Lawskills.com Georgia Caselaw
TIDWELL v. CHEROKEE CULVERT COMPANY, INC.
66532.
SOGNIER, Judge.
Action on account. Bibb Superior Court. before Judge Johnson.
Cherokee Culvert Company, Inc. sued E. E. Tidwell on an open account. Tidwell filed his answer two days late and failed to pay costs. The suit went into default and the trial court, after a hearing, denied a motion to open default and entered judgment against Tidwell for the amount of the claim. Tidwell appeals.
1. Appellant contends that the trial court erred by entering default judgment because he was served two days later than the date appearing on the return of service. " 'While the return may be traversed and impeached, the certified return is of itself evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit. [Cit.] The entry of service imports verity. [Cits.]' " Stevens v. First Fed. Savings &c. Assn., 162 Ga. App. 748 (293 SE2d 357) (1982). Although appellant and his wife stated in affidavits that he was served two days after the date shown on the return of service, this created an issue of fact for determination by the court. We cannot say that the trial court's resolution of this issue against appellant was without foundation. Lester v. Crooms, Inc., 157 Ga. App. 377, 380 (277 SE2d 751) (1981).
2. Appellant's contention that the trial court was required to find that he deliberately and intentionally failed to obey the process of the court before default judgment could be ordered is without merit. Appellant filed his answer two days late and failed to pay court costs. There is nothing in the record to suggest excusable neglect or providential cause and we find no abuse of discretion in the trial court's determination that the facts in this case did not warrant opening the default. Simon v. McGee Plumbing &c. Co., 164 Ga. App. 667, 668 (1) (299 SE2d 388) (1982).
577, 578 (4) (239 SE2d 230) (1977).
V. J. Adams, Jr., for appellee.
Thomas F. Jarriel, for appellant.
DECIDED OCTOBER 26, 1983.
Thursday May 21 20:23 EDT


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