Johnson v. Durrence , 136 Ga. App. 439 ( 1975 )

Evans, Judge.

Boysie Johnson, plaintiff, filed suit against Wayne Durrence, as defendant, to recover damages. The City of Soperton was thereafter made a party defendant. Presumably, the City of Soperton filed its defense timely, as the only question we have before us is as to whether Wayne Durrence may open a default, having failed to file timely defensive pleadings.

The sole ground urged by defendant Durrence for opening the default is excusable neglect in that he had been assured by the officials of the City of Soperton that it would be liable and responsible for any damages that occurred because of the project that existed between said two defendants. Defendant alleged that he, in good faith, thought that the matter would be taken care of by the City of Soperton, and therefore, he gave no consideration and paid no attention to the complaint, resulting in his not filing defensive pleadings.

More than 15 days had expired since the case became in default, and the only way he could secure the opening of default was to get an order of judgment from the judge of superior court. Actually, he was served on April 22, 1972, and moved to open default on April 8, 1975 — which was almost three years after service had been made upon him.

The trial judge rendered an order permitting the default to be opened.

Under the recent case of Houston v. Lowes, 235 Ga. 201, there are three grounds under which a default may be opened, as follows, to wit: 1. providential cause; 2. excusable neglect; 3. where the judge, from all the facts, shall determine that a proper case has been made to open the default.

While defendant Durrence asserts as his sole ground for opening default that he committed excusable neglect, obviously, the lower court switched to the third and last ground under Code Ann. § 81A-155 (b) to afford relief, which ground is: "[Wjhere the judge, from all the facts, shall determine that a proper case has been made for the default to be opened.”

Surely a trial judge cannot just act willy-nilly and without the exercise of any legal discretion whatever, open the default, and give as his reason that a proper case has been made, when no case at all has actually been made, proper or otherwise. If this be true, then nothing whatever need be shown which gives the trial judge a legal discretion to act.

A judge is always required to exercise a legal discretion, and in order to do that, some facts must be proven before him which warrant the exercise of legal discretion.

In Miller v. Wallace, 76 Ga. 479 (2a), 484, the right to exercise discretion is ably discussed: "The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Roman praetors, but, as remarked by Lord Mansfield in R. vs. Wilkes, 2 Burr., 25, 39, is such a discretion as, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.’ In Rooke’s case, 5 R., 99 (b), it is said: 'And notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceeding ought to be limited, and bound with the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to their wills and private affections.. .’’ Headnote 2 (a) is as follows: "Under the discretion vested in him, no judge has authority to disregard or even to impair any acknowledged or established right of a party by its exercise, and if he does so, he abuses that discretion. The power ought to be exercised in favor of the party having the legal right, unless the circumstances of the case and the precedents established would justify the court, acting for the welfare of the child, in refusing it.”

In Griffin v. State, 12 Ga. App. 615, 616 (5) (77 SE 1080) at page 620 (5), it is held that "An appeal to a judge’s discretion is an appeal to his judicial conscience. This discretion must be exercised, not in opposition to, but in accordance with, established rules of law. It is not an arbitrary power, but one which must be exercised wisely and impartially. In its practical application in this State, judicial discretion is substantially synonymous with judicial power.”

What are the facts here? The plaintiff wishes to keep defendant in default, and defendant has asked the court to grant him the right to open, not because of some trick, artifice, scheme, or fraud, practiced on him by the plaintiff, but he points to a third person, and asks that the plaintiff suffer because defendant’s co-defendant did not take care of the matter. Even then he does not suggest that the City of Soperton told him or intimated that he should not file defensive pleadings after being served. The service of the complaint was notice to Durrence, defendant, to become active — which he did not do, but waited three years and asked for relief because of his own laches, and because of what someone other than plaintiff had failed to do. Surely this could not come within the legal discretion a judge must exercise in determining whether a proper case for opening the default has been made.

Even if the City of Soperton had deceived Durrence, "[W]here no fiduciary relationship exists, misrepresentations as to a question of law will not constitute remedial fraud, since every one is presumed to know the law . . .” Lewis v. Alderman, 117 Ga. App. 855, 856 (3) (162 SE2d 440); Swofford v. Glaze, 207 Ga. 532, 535 (63 SE2d 342).

Further, it is a cardinal rule of law that one cannot plead fraud against A because B has misled or taken advantage of him. The plaintiff here has done nothing whatever to mislead defendant Durrence; Durrence does not allege that plaintiff has mistreated or is in anywise responsible for Durrence being in default and yet the relief he prays is against the innocent plaintiff He prays — and the trial judge has granted his prayer — to open default against the plaintiff because his co-defendant about three or more years ago, promised to take care of the damages. By no stretch of the imagination can he come into court against plaintiff on such pretext. And we again repeat that he does not even contend the City of Soperton deceived him into failing to file defensive pleadings. As soon as the complaint was filed, Durrence, defendant, knew the City of Soperton had not taken care of the matter, and in every day parlance, "all bets were off.”

It is more than a little important that Durrence does not even contend that the City of Soperton ever told him it would take care of the complaint — or the suit at law — but whatever was to be taken care of was antecedent to the filing of suit. After complaint was filed, Durrence, with eyes wide open, waited almost three years, and then said "The plaintiff did nothing wrong; but my co-defendant promised he would not let this matter go to suit; he would take care of it, and I would like for the court to determine that my neglect was excusable.”

The trial judge abused his discretion in opening the default.

Submitted September 8, 1975 Decided November 5, 1975. Malcolm F. Bryant, Jr., for appellant. B. Daniel Dubberly, Jr., Ogden Doremus, for appellees.

Judgment reversed.

Pannell, P. J., Deen, P. J., Quillian, Webb and Marshall, JJ, concur. Bell, C. J., Clark and Stolz, JJ., dissent.