Becker v. Fairman

Banke, Judge.

The plaintiff, Fairman, brought this action on a promissory note jointly against Bernie Becker and his wife, seeking $5,000 in principal and $5,369.55 interest, plus attorney fees. According to a syllabus of events in the court’s order, the complaint was filed on February 16, 1982. (The copy of the complaint in the record before us shows no filing date.) Service upon the Beckers was made on March 15,1982. The defendants’ answers were not filed until April 20, 1982, and defendants concede that costs were not tendered at that time, as required by OCGA § 9-11-55 (former Code Ann. § 81A-155). On May 12, 1982, the plaintiff moved for dismissal of the answers and for judgment in his favor based on former Code Ann. § 81A-155 (OCGA § 9-11-55). Defendants subsequently tendered payment of costs to the clerk of the court on May 20, 1982.

On June 14, 1982, the plaintiff moved for partial summary judgment with respect to defendants’ second and seventh defenses of failure to state a claim and failure of consideration. In an order dated July 15,1982, the trial court indicated that defendants had moved to open the default and proceeded to deny that motion. In this same order, the court also granted the plaintiffs motion for partial summary judgment. On July 23, 1982, the defendants moved for reconsideration of the trial court’s order of July 15, 1982, and this motion was denied on October 22,1982. This appeal followed. Held:

1. The plaintiffs motion to dismiss the appeal is granted. Notwithstanding the defendants’ argument to the contrary, it is clear that the only appealable order of record is the order of July 15,1982, granting partial summary judgment to the plaintiff. See generally OCGA § 9-11-56 (h) (Code Ann. § 81A-156); Shannon Co. v. Heneveld, 235 Ga. 635 (221 SE2d 200) (1975). The appeal was not filed within 30 days from this order, however, but was filed subsequent to the denial of a motion for reconsideration of this order several months later. It has repeatedly been held that, unlike a motion for new trial, motion in arrest of judgment, or motion for judgment not withstanding the verdict, a motion for reconsideration does not extend the time for filing a notice of appeal. See OCGA § 5-6-38 (Code Ann. § 6-803); Ellis v. Continental Ins. Co., 141 Ga. App. 809 (234 SE2d 377) (1977). To the extent that our holding in Lawler v. Ga. Mut. Ins. Co., 156 Ga. App. 265 (276 SE2d 646) (1980), may suggest that we have jurisdiction to reach the merits of a case such as this, and thus to affirm the judgment of the trial court rather than dismissing the appeal, it is expressly overruled. Lawler itself emphasizes that “a motion for reconsideration [is] not one of the statutory motions which. . . extend the time for filing a notice of appeal... Groenendijk v. Groenendijk, 226 Ga. 800 (177 SE2d 686).” Lawler, 266. None of the decisions cited in Lawler are authority for reaching the merits of an appeal from the denial of a motion for reconsideration. In Harrison v. Harrison, 229 Ga. 692 (1) (194 SE2d 87) (1972), the appeal was filed within 30 days of an order disposing of a motion for new trial. In Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975), and Wall v. C & S Bank of Houston County, 153 Ga. App. 29 (3) (264 SE2d 523) (1980), the appeals were filed too soon rather than too late. Thus, we lack jurisdiction to entertain the appeal.

2. In returning the case to the trial court, we note that its order of July 15,1982, is confusing and inconsistent. While it grants partial summary judgment to the plaintiff concerning two defenses, it also purports to deny defendants’ motion to open the default, albeit without entering a monetary judgment based on the default. It is apparent that the trial court denied the motion to open the default based on the absence of a showing of providential cause or excusable neglect, but these are not the exclusive grounds on which a default may be opened. A default may also be opened “where the judge, from all the facts, shall determine that a proper case has been made ...” OCGA § 9-11-55 (b) (Code Ann. § 81A-155). The statute “conveys very ample powers as to opening defaults; not only providential cause, which is broad, and excusable neglect, which is still broader, but finally, as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, ‘where the judge from all the facts shall determine that a proper case has been made...”’ Brawner v. Maddox, 1 Ga. App. 332, 337 (58 SE 278) (1907); Axelroad v. Preston, 232 Ga. 836 (209 SE2d 178) (1974). Accord Copeland v. Carter, 247 Ga. 542 (277 SE2d 500) (1981). Were we able to reach this appeal, the failure of the trial court to recognize and exercise its discretion in this regard would require reversal. See Williams v. C & S Nat. Bank, 142 Ga. App. 346 (4) (236 SE2d 16) (1977).

Decided September 6, 1983. David B. Dermer, for appellants. Tony Center, for appellee.

3. Since we have dismissed the appeal rather than affirming the judgment, plaintiffs motion for assessment of damages for delay must be denied. See generally OCGA § 5-6-6 (Code Ann. § 6-1801); Jones v. Poole, 5 Ga. App. 113 (62 SE 711) (1908).

Appeal dismissed.

Shulman, C. J., Deen, P. J., Birdsong, Carley, Sognier and Pope, JJ., concur. Quillian, P. J., andMcMurray, P. J., concur in part and dissent in part.