Avant v. Patrick

133 Ga. App. 708 (1975) 213 S.E.2d 14

AVANT et al.
v.
PATRICK et al.

49694.

Court of Appeals of Georgia.

Argued September 10, 1974. Decided January 14, 1975.

Murray Z. Kahn, John A. Ford, for appellants.

Stokes, Boyd & Shapiro, J. Ben Shapiro, Jr., Ira J. Smotherman, Jr., for appellees.

QUILLIAN, Judge.

The instant appeal was taken from the grant of an application to open default filed by the defendant trustees of the William Penn Patrick Trust. The original lawsuit was a class action alleging that defendant, pursuant to a "pyramid" sales scheme, sold distributorships in Sta-Power Industries, Inc. to the plaintiffs by means of fraudulent practices and in violation of the Georgia Securities Act. The present defendants as trustees of the William Penn Patrick Trust were not named in the original complaint and a motion to add them was filed on October 26, 1973. On January 17, 1974, the motion was heard and subsequently granted by the court. The trustees were then served on February 14, 1974.

The trustees failed to answer the suit within thirty days and failed to pay costs and answer within fifteen days thereafter. It was not until April 26, 1974, that the motion and application to open default was filed. This motion was subsequently granted by the trial judge. Upon a certificate for immediate review the plaintiffs appeal to this court. Held:

We are bound by the ruling in Axelroad v. Preston, 232 Ga. 836, 837 (209 SE2d 178), which quoting with approval Foster Co. v. Livingston, 127 Ga. App. 317, 318 (193 SE2d 626), held: "When the defendant here complied with the requirements of Section 55 (b) of the Civil Practice Act, and the trial judge from all of the facts determined ``that a proper case had been made for the default to be opened,' we cannot, under the facts, say that the trial judge abused his discretion even though there was no providential cause or excusable neglect." See Section 55 (b) of the Civil Practice Act (Ga. L. 1966, pp. 609, 659; 1967, pp. 226, 238; Code Ann. § 81A-155 (b)).

Here as in that case there was no delay in the trial occasioned by the default. Hence, the trial judge's exercise of discretion by permitting the opening of the default must be sustained.

Judgment affirmed. Bell, C. J., and Clark, J., concur.