Crenshaw v. Crenshaw

Thompson, Justice,

concurring specially.

I agree that this case must be reversed. However, I would remand to the trial court to determine whether, under all the circumstances of the case, the judgment should be set aside.

Mrs. Crenshaw moved to set aside the judgment pursuant to OCGA § 9-11-60 (d). The trial court denied the motion, stating that Mrs; Crenshaw failed to set forth any grounds for relief under OCGA § 9-11-60 (d), and adding that, had Mrs. Crenshaw filed a motion for new trial, it would have been able to exercise discretion in the matter.

A court is vested with discretion in determining whether a motion to set aside should be granted on the ground of insufficient notice of trial. Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979); Maolud v. Keller, 153 Ga. App. 268, 269 (265 SE2d 86) (1980). See also Green v. Green, 263 Ga. 551, 554 (437 SE2d 457) (1993). Because the trial court denied Mrs. Crenshaw’s motion to set aside without exercising any discretion, the judgment should be reversed and the case remanded. Spyropoulos v. John Linard Estate, supra.

I am authorized to state that Chief Justice Benham joins in this special concurrence.