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appealing a default judgment in Georgia, need citations to

Customer Question

appealing a default judgment in Georgia, need citations to cases, statututes and other legal authorities supporting argument that appellant received no proper notice of trial setting or hearing and that the judgment was given without the defendant being heard in his own defense, also, default judgment stated plaintiff was served on Dec 3, 2008 but was in default because answer was filed on Jan 5th, due to holidays was this late? or is the date on the certified receipt sufficent to prove it was timely? an curiously, the complaint was filed by plaintiff on Oct 31, 2008 but not served until December, is that proper. thanks
Submitted: 5 years ago.
Category: Legal
Expert:  LawTalk replied 5 years ago.
Good afternoon from Savannah,

I'm sorry to hear of your dilemma.

An Answer is only considered filed when it is received by the court clerk and file stamped. It doesn't matter when you mailed it out. Friday the 2nd of January was a week day and not a recognized court holiday, so technically the Answer was late and the plaintiff could apply for a default if the Answer was not file stamped by that date.

If the court entered a default judgment against you, you would have been served with a copy of the court's order and you would have had 30 days in which to appeal that order. Default judgments are routinely set aside because the court abhors a default and would rather have a case tried on its merits.

However, if you failed to file a timely appeal than I'm afraid that there isn't much you can do at this point.

The filing of the complaint versus the date it was served is not a problem.

If the court has not entered a final money judgment against you, all you need do is file a motion to set aside and indicate that through mistake or inadvertence, you filed the Answer a day late. The court will set aside the default and allow you to defend your case.

I wish you well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

LawTalk, Attorney
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Expert:  LawTalk replied 5 years ago.
Good afternoon,

I realize that it is a lot of legalese to read, but here is the GA Code section dealing with complaints, answer and default judgments:

15-10-43 Statement of claim - answer - default judgment.

(a) Actions shall be commenced by the filing of a statement of claim, including the last known address of the defendant, in concise form and free from technicalities. The plaintiff or his or her agent shall sign and verify the statement of claim by oath or affirmation. At the request of any individual, the judge or clerk may prepare the statement of claim and other papers required to be filed in an action. The statement of claim shall include a brief statement of the claim giving the defendant reasonable notice of the basis for each claim contained in the statement of claim and the address at which the plaintiff desires to receive the notice of hearing.

(b) A copy of the verified statement of claim shall be served on the defendant personally, or by leaving a copy thereof at the defendant's dwelling or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the claim to an agent authorized by appointment or by law to receive service of process, and such service shall be sufficient. Service of said process shall be made within the county as provided in this Code section. Service outside the county shall be by second original as provided in Code Section 9-10-72. Said service shall be made by any official or person authorized by law to serve process in the superior court, by a constable, or by any person sui juris who is not a party to, or otherwise interested in, the action, who is specially appointed by the judge of said court for that purpose. When the claim and notice are served by a private individual, such individual shall make proof of service by affidavit, showing the time and place of such service on the defendant.

(c) An answer to the claim must be filed with the court or orally presented to the judge or clerk of the court within 30 days after service of the statement of claim on the defendant to avoid a default. The answer shall be in concise form and free from technical requirements, but must admit or deny the claim of the plaintiff. The answer shall contain the address at which the defendant desires to receive the notice of hearing. If the answer is presented to the judge or clerk orally, the judge or clerk shall reduce the answer to writing. A copy of the answer shall be forwarded to the plaintiff and defendant with the notice of hearing. If an answer is timely filed or presented, the court shall within ten days of filing or presentation of the answer notify the defendant and the plaintiff of the calling of a hearing on the claim. The notice shall include the date, hour, and location of the hearing, which date shall be not less than 15 nor more than 30 days after the date the notice is given. The notice shall be served on the plaintiff and the defendant by mail or personal service to the address given by the plaintiff at the time he or she files his or her claim and the address given by the defendant at the time he or she files or presents his or her answer. The date of mailing shall be the date the notice is given. The clerk shall enter a certificate of service.

(d) Upon failure of the defendant to answer the claim within 30 days after service of the statement of claim, the defendant shall be in default. The defaulting party may open the default upon filing an answer and upon payment of costs within 15 days of default. If the defendant is still in default after the expiration of 15 days after the answer is due, the plaintiff shall be entitled to a default judgment without further proof if the claim is for liquidated damages. When the claim is for unliquidated damages, the plaintiff must offer proof of the damage amount. Separate notice of the date and time of the unliquidated damages hearing shall be sent to the defendant at his or her service address. The defendant shall be allowed to submit evidence at that hearing on the issue of the amount of damage only.

(e)(1) When a hearing is scheduled pursuant to subsection (c) of this Code section, upon failure of the defendant to appear for the hearing, the plaintiff shall be entitled to have the defendant's answer stricken and a default judgment entered; provided, however, that no default judgment shall be granted if the defendant appears at trial through counsel. If the claim is for liquidated damages, the plaintiff shall be entitled to take a judgment in the amount set forth in the complaint without further proof. If the claim is for unliquidated damages, the plaintiff shall proceed to prove his or her damages and take judgment in an amount determined by the judge.

(2) When a hearing is scheduled pursuant to subsection (d) of this Code section, upon failure of the defendant to appear, the plaintiff shall be entitled to submit proof of the damages and take judgment in an amount determined by the judge.

(3) If the plaintiff fails to appear for a hearing scheduled pursuant to either subsection (c) or (d) of this Code section, the court on motion of the defendant, or on its own motion, may dismiss the plaintiff's complaint, with or without prejudice, in the discretion of the court.

(f) At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.

(g) Notwithstanding the provisions of Code Section 15-10-42, the magistrate court may grant relief from a judgment under the same circumstances as the state court may grant such relief. Requests for relief from judgments pursuant to this Code section in the magistrate court shall be by filing a written motion which sets forth the issues with reasonable specificity. The procedure shall then be the same as in other cases except the court may assess costs as seem just.

(h) A complaint in equity to set aside a judgment of the magistrate court may be brought under the same circumstances as a complaint to set aside a judgment in a court of record.

(i) Nothing in this chapter shall be construed to prohibit an employee of any corporation or other legal entity from representing the corporation or legal entity before the magistrate court.

Customer: replied 5 years ago.
can still file motion to set aside judgment if on docket of appellate court?
Expert:  LawTalk replied 5 years ago.
Good afternoon,

I don't practice appellate law and I'm afraid that I can't answer that for you. If this is a case involving significant money, I would suggest that you immediately consult an attorney practicing appellate law to determine whether you can preserve your appeal while still filing a motion to set aside.

I wish you the best.

Doug

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