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Lawskills.com Georgia Caselaw
HINES v. WINGO.
44695.
Action on account. DeKalb Civil and Criminal Court. Before Judge Mitchell.
BELL, Chief Judge.
1. Although the Civil and Criminal Court of DeKalb County is a court of record and the Civil Practice Act applies to it, the time requirements for serving answers under Code Ann. 81A-112 (a) do not apply as the answer date for that court is otherwise provided by statute.
2. Opening a default judgment as a matter of right is conditioned upon the payment of costs.
3. It is within the discretionary power of the judges of the Civil and Criminal Court of DeKalb County to open a default judgment without the payment of the costs.
4. Where proceedings to open a default judgment were commenced during the term in which the judgment was entered, jurisdiction to exercise the discretion to vacate the judgment was retained by the court at a subsequent term.
Plaintiff filed suit on an open account in the Civil and Criminal Court of DeKalb County. Defendant was personally served on February 5, 1969. The summons required appearance and an answer on or before the "first Monday in March 1969." On March 4, 1969, one day following the appearance date, no defensive pleadings had been filed and a default judgment was entered. On March 19, 1969, defendant filed a motion to set aside the judgment under Code Ann. 81A-160 (d) on the ground that the default judgment was void as it was entered less than thirty days from the date of service and defendant was entitled as a matter of right to open the default upon payment of costs within fifteen days from the original party days in which he was required to file his defensive pleadings. During the April term, a hearing was held on defendant's motion. At that time the court orally vacated and set aside the judgment and allowed the defendant to plead. The order was reduced to writing on May 16, 1969. It appears in the transcript of the hearing that defendant has not paid the costs. The trial court certified the case to this court under Code Ann. 6-701 (a) 2. Plaintiff enumerates as error the granting of the motion to set aside and the order vacating the judgment.
1. The Civil Practice Act applies to all courts of record. Code Ann. 81A-101. The Civil and Criminal Court of DeKalb County is a court of record. Ga. L. 1968, p. 2928. Code Ann. 81A-112 (a) provides that a defendant shall serve his answer within thirty days, "unless otherwise provided by statute." The practice and procedure in the Civil and Criminal Court of Del&alb County "shall be and remain the same as that now in vogue in the justice courts of Georgia." Ga. L. 1951, pp. 2401, 2404, 2405; Ga. L. 1962, pp. 3227, 3228. In justice courts the summons will specify the appearance and answer date. Code 24-1102, 24-1401. Accordingly, as it is otherwise specifically provided by statute, Code Ann. 81A-112 (a) does not apply to the Civil and Criminal Court of DeKalb County. The defendant was therefore in default on March 4, 1969.
3. It is reflected in the record of this case that the default was also opened by the court as an act of discretion. A 1960 statute pertaining to that court provides that "In any case in default, upon motion made, the judges, in their discretion, shall have the right to open said default judgment during the term in which said default judgment gas entered. Such discretion shall not be limited to a legal showing by movant." Ga. L. 1960, pp. 2166, 2170, 2171. The 1968 statute is silent and therefore not in conflict with that of 1960 as to the opening of a default under the discretionary powers of the court. There was no express repeal. Repeal by implication is not favored by the law and results only where the later Act is so repugnant to the former and so inconsistent with it that the two cannot stand together, or where it is manifestly intended to cover the same subject matter and to operate as a substitute for it. The intention to repeal must be plain and unmistakable. State Bd. of Educ. v. Bd. of Educ. of Richmond County, 190 Ga. 588, 592 (10 SE2d 369); Geeslin v. Opie, 220 Ga. 53, 56 (136 SE2d 720). It follows that the opening of the default in this case as a matter of discretion by the judges of the Civil and Criminal Court of DeKalb County was authorized.
4. Plaintiff contends that even if the discretionary portion of the 1960 Act is valid, the trial court did not abide by the express terms of the statute as the default, entered in the March term, was not opened until the April term. However, since the proceedings were instituted to open the default in the March term, the court retained jurisdiction to exercise its discretion. Miraglia v. Bryson, 152 Ga. 828 (111 SE 655); Maxwell v. Cofer, 201 Ga. 222 (39 SE2d 314); Barrett v. Manus, 219 Ga. 693, 694 (135 SE2d 430); Raper v. Smith, 101 Ga. App. 557, 559 (115 SE2d 234), reversed on other grounds, 216 Ga. 326 (116 SE2d 554).
Judgment affirmed. Eberhardt and Deen, JJ., concur.
Neely, Freeman & Hawkins, Robert L. Cowles, for appellee.
Powell, Goldstein, Frazer & Murphy, David R. Aufdenspring, for appellant.
ARGUED SEPTEMBER 2, 1969 -- DECIDED OCTOBER 27, 1969 --REHEARING DENIED NOVEMBER 10, 1969 -- CERT. APPLIED FOR.
Friday May 22 17:44 EDT


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