(Ga. L. 1898, p. 89, §§ 1, 2; Civil Code 1910, §§ 4864, 4865; Ga. L. 1916, p. 50, § 1; Code 1933, §§ 24-2620, 24-2621; Ga. L. 1982, p. 3, § 15; Ga. L. 1990, p. 8, § 15; Ga. L. 2001, p. 854, § 2.)
Cross references.- Impeachment, Ga. Const. 1983, Art. III, Sec. VII.
Motions, demurrers, special pleas, and similar items in criminal matters, Uniform Superior Court Rules, Rule 31.
Editor's notes.- Ga. L. 2001, p. 854, § 3, not codified by the General Assembly, provides that the amendment to subsection (c) shall apply to judgments or decisions entered on and after July 1, 2001.
Law reviews.- For article, "Judicial Retirement, Discipline and Removal," see 3 Ga. St. B. J. 197 (1966). For article discussing the inefficiency of mandamus and impeachment as remedies for judicial inaction, see 5 Ga. St. B. J. 467 (1969). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007).
JUDICIAL DECISIONSANALYSIS
General Consideration
Superior court judge is named as respondent.
- Although there may occasionally appear to be a need to file an original petition in the Supreme Court to issue process in the nature of mandamus, and perhaps quo warranto or prohibition, if a superior court judge is named as the respondent, such as if the petitioner seeks to require the judge to enter an order in a matter allegedly pending more than 30 days in violation of subsection (a) of O.C.G.A. § 15-6-21, such a petition may in fact be filed in the appropriate superior court. Being the respondent, the superior court judge will be disqualified, another superior court judge will be appointed to hear and determine the matter, and the final decision may be appealed to the Supreme Court for review. Brown v. Johnson, 251 Ga. 436, 306 S.E.2d 655 (1983).
Failure to enter written ruling not error on discovery motion.
- Trial court did not err by not entering a written ruling upon a debtor's motion for additional discovery since the trial court ruled on the first motion for additional discovery verbally, without objection, granting the debtor the additional discovery, and no objection was made contemporaneously with regard to the renewed motion when no written ruling was made. Murphy v. Varner, 292 Ga. App. 747, 666 S.E.2d 53 (2008).
Out of state attorney lacked standing.
- Florida attorney who had been admitted pro hac vice to represent a defendant in a tire case, but whose duties were limited by the trial court due to the attorney's misleading statements, and whose client was later dismissed from the case, did not have standing to seek mandamus compelling the trial court to rule on motions under O.C.G.A. § 15-6-21(b) so the attorney could appeal the ruling as to the attorney's conduct. Fein v. Bessen, 300 Ga. 25, 793 S.E.2d 76 (2016).
Failure to notify of denial of motion to withdraw.
- Judgment denying the appellant's request for reprieve from the appellant's guilty plea was vacated because the record did not show that the trial court notified the appellant of the denial of the motion to withdraw the guilty plea and also erred by refusing to grant the appellant an out-of-time appeal. Williams v. State, 339 Ga. App. 158, 793 S.E.2d 485 (2016).
Duty to notify satisfied.
- Court's order denying the motion to set aside and re-enter the court's order denying the defendant's motion for a new trial contained findings supported by evidence in the record sufficient to support denial of the motion on the basis that the court satisfied the court's duty to notify under O.C.G.A. § 15-6-21(c), thus, the defendant's right to file an out-of-time appeal from the defendant's conviction on the traffic offenses expired 30 days after entry of the court's order granting the out-of-time appeal. McCurley v. State, 345 Ga. App. 856, 815 S.E.2d 188 (2018).
Cited in Columbia Fire Ins. Co. v. Sams & Co., 141 Ga. 641, 81 S.E. 856 (1914); Wright v. Moon, 30 Ga. App. 87, 116 S.E. 545 (1923); Burnett v. McDaniel & Co., 35 Ga. App. 367, 133 S.E. 268 (1926); Galloway v. Mitchell County Elec. Membership Corp., 190 Ga. 428, 9 S.E.2d 903 (1940); Cromer v. Cromer, 222 Ga. 365, 149 S.E.2d 804 (1966); Haynes v. State, 159 Ga. App. 34, 283 S.E.2d 25 (1981); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 364 S.E.2d 623 (1988); Ciprotti v. State, 187 Ga. App. 61, 369 S.E.2d 337 (1988); Shouse v. State, 189 Ga. App. 531, 376 S.E.2d 911 (1988); Morris v. Clark, 189 Ga. App. 228, 375 S.E.2d 616 (1989); Tucker Station, Ltd. v. Chalet I, Inc., 203 Ga. App. 383, 417 S.E.2d 40 (1992); Lee v. City of Rome, 866 F. Supp. 545 (N.D. Ga. 1994); Conklin v. Zant, 216 Ga. App. 357, 454 S.E.2d 159 (1995); Bonner v. Smith, 226 Ga. App. 3, 485 S.E.2d 214 (1997); Veasley v. State, 272 Ga. 837, 537 S.E.2d 42 (2000); Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 545 S.E.2d 34 (2001); Thorpe v. Russell, 274 Ga. 781, 559 S.E.2d 432 (2002); Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006); Register v. Elliott, 285 Ga. App. 741, 647 S.E.2d 406 (2007); Dupree v. Dupree, 287 Ga. 319, 695 S.E.2d 628 (2010).
Notice
Lack of notice of entry of a judgment does not extend the time for filing a notice of appeal. Atlantic-Canadian Corp. v. Hammer, Siler, George Assocs., 167 Ga. App. 257, 306 S.E.2d 22 (1983); Dashiell v. Standard Mgt. Co., 174 Ga. App. 442, 330 S.E.2d 179 (1985); Brown v. E.I. du Pont de Nemours & Co., 240 Ga. App. 893, 525 S.E.2d 731 (1999).
Trial court's denial of a surety's motion to set aside a judgment of forfeiture absolute was properly denied since: (1) defendant and the surety were ordered to appear before the trial court and show cause why the bond should not be forfeited; (2) neither defendant nor the surety appeared; (3) the surety did not receive notice of the judgment until five months after the hearing; (4) the trial court followed O.C.G.A. §§ 17-6-70 and17-6-71 to the letter; and (5) even if O.C.G.A. § 15-6-21(c) obligated the trial court to serve notice of the judgment absolute, the surety failed to exercise any diligence whatsoever, and any harm the surety suffered was self-imposed. Reliable Bonding Co. v. State, 262 Ga. App. 280, 585 S.E.2d 192 (2003).
In an application to recover seized currency under O.C.G.A. § 16-13-49(q)(4), a trial court erred in denying the owner's motion to set aside the order denying the application without making the finding required by O.C.G.A. § 15-6-21(c) as to whether the owner or the owner's counsel had received notice of the order. Grant v. State, 302 Ga. App. 739, 691 S.E.2d 623 (2010).
Trial court failed to make the necessary inquiry and findings as to whether a pro se defendant received notice of the trial court's denial of the defendant's motion for new trial as required by O.C.G.A. § 15-6-21(c). If no notice was received, the trial court was required to grant the defendant's motion for an out-of- time appeal. Whitfield v. State, 313 Ga. App. 297, 721 S.E.2d 211 (2011).
Action to set aside under O.C.G.A.
§ 9-11-60(g). - If a personal injury case was dismissed without prejudice when neither party appeared for a peremptory calendar call, the trial court failed to notify the parties of the dismissal, and the parties did not learn the case had been dismissed until nine months later, it was proper to grant plaintiff's motion to set aside the judgment and reenter a new order dismissing the case, thereby enabling plaintiff to refile plaintiff's action within six months. Morgan v. Starks, 214 Ga. App. 265, 447 S.E.2d 651 (1994).
In considering whether the trial court's denial of a motion to set aside was erroneous because a party did not receive notice of the entry of judgment, the issue is not whether the losing party had knowledge that the judgment was entered, but rather whether the duty imposed on the court by O.C.G.A. § 15-6-21(c) was carried out; it is necessary that the trial court first make a finding regarding whether such duty was met and, if not, the earlier judgment must be set aside before judgment is reentered to commence a new 30-day period for appeal. Kendall v. Peach State Mach., Inc., 215 Ga. App. 633, 451 S.E.2d 810 (1994).
If no notice is sent by trial court or by clerk to losing party, an action may be brought under O.C.G.A. § 9-11-60(g) to set aside an earlier judgment; and upon a finding that notice was not provided as required by O.C.G.A. § 15-6-21, the motion to set aside may be granted, the judgment reentered, and the 30-day period within which the losing party must appeal will begin to run from the date of the reentry. Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015); Fremichael v. Doe, 221 Ga. App. 698, 472 S.E.2d 440 (1996); Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 481 S.E.2d 903 (1997).
If a dismissal order was never served upon the plaintiff because the trial court's staff misaddressed the envelope, the court properly set aside and then reentered the dismissal order and the order was effective as of the date the order was actually reentered. Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 534 S.E.2d 547 (2000).
Judgment was entered by the trial court, based on a jury verdict in favor of defendant, and the trial court instructed defendant to mail notice of the judgment to plaintiff, which plaintiff admittedly timely received, thus, the mandate of O.C.G.A. § 15-6-21(c) was met and the trial court properly denied the plaintiff's motion to set aside the judgment pursuant to O.C.G.A. § 9-11-60(g); although the trial court did not make a specific finding as to whether the notice requirements of § 15-6-21(c) were met, the facts that supported denial of the motion to set aside were set out and those indicated compliance with the notice statute. Woods v. Savannah Rest. Corp., 267 Ga. App. 387, 599 S.E.2d 338 (2004).
Because an appeal by the parents from the juvenile court's order denying the parents motion to rescind and re-enter the dismissal order under O.C.G.A. § 9-11-60(g) on the grounds that the trial court failed to give proper notice of the court's decision, in accordance with O.C.G.A. § 15-6-21(c), failed to challenge the juvenile court's error in denying the motion, but rather, challenged specific rulings entered by the juvenile court in the deprivation proceedings, denial of the motion to rescind and re-enter was affirmed on appeal as the appellate court lacked jurisdiction to consider the errors asserted by the parents in the underlying deprivation case. In the Interest of S.C., 283 Ga. App. 387, 641 S.E.2d 618 (2007).
In a workers' compensation case, when the trial court failed to send the parties the court's judgment as required by O.C.G.A. § 15-6-21(c), the court erred in denying the employer's motion under O.C.G.A. § 9-11-60(g) to vacate and re-enter the judgment so that the employer could file a timely appeal. O.C.G.A. § 34-9-105(b) did not prevent granting of the motion because the trial court had complied with the provision's time limitations. It was improper for the trial court to decide the motion based upon the court's determination that the employer knew or should have known that a judgment had been entered. Wal-Mart Stores, Inc. v. Parker, 283 Ga. App. 708, 642 S.E.2d 387 (2007).
Trial court properly set aside the dismissal of a declaratory judgment action brought by putative heirs against two trustees of an estate as the trial court failed to provide notice of a peremptory calendar call the case was placed on, which led to the dismissal. The court's failure to comply with the requirements of O.C.G.A. § 15-6-21(c), that the court provide counsel with notice of the court's orders, provides justification for the court to later set aside such an order. Andrus v. Andrus, 290 Ga. App. 394, 659 S.E.2d 793 (2008).
Probate court violated O.C.G.A. § 15-6-21(c)'s notice requirements by setting aside a partial final consent order sua sponte without notice to the parties' counsel. If the intent of the final order the court later entered was to supplement and not supplant the partial final order, O.C.G.A. § 9-11-60(g) allowed the fact-finder to correct "at any time" the mistaken omission of the partial final order's provision concerning appointment of an executor from the final order. Harwell v. Harwell, 292 Ga. App. 339, 665 S.E.2d 33 (2008).
Court of appeals was unable to determine whether the trial court's denial of a plaintiff's motion under O.C.G.A. § 9-11-60(g) to set aside an order dismissing a lawsuit was proper because the trial court made no findings of fact about whether the court sent the notice of the order of dismissal to the plaintiff as required by O.C.G.A. § 15-6-21(c); the plaintiff submitted affidavits, in which members and employees of the plaintiff's law firm attested that the firm did not receive notice of the order of dismissal, which also was some evidence that notice was not sent. Tyliczka v. Chance, 313 Ga. App. 787, 723 S.E.2d 27 (2012).
Although a bicyclist failed to comply with the trial court's order to notify a driver of a default judgment against the driver for $2.9 million, such failure did not permit the trial court to vacate the judgment under O.C.G.A. § 9-11-60(g) because the trial court had no duty to notify the driver of the judgment, pursuant to O.C.G.A. §§ 9-11-5(a) and15-6-21(c). Winslett v. Guthrie, 326 Ga. App. 747, 755 S.E.2d 287 (2014).
Trial court did not abuse the court's discretion in denying the plaintiff's motion to set aside a judgment pursuant to O.C.G.A. § 9-11-60(g) because it was unrefuted that the trial court mailed the order to the address on record, although it was later returned stamped undeliverable and the court followed through with the duty imposed upon the court by O.C.G.A. § 15-6-21(c). Syed v. Merchant's Square Office Bldgs., LLC, 354 Ga. App. 365, 841 S.E.2d 8 (2020).
Proper notice of order given.
- Husband was not prevented by the trial court clerk from filing a timely motion for new trial after the trial court issued a final divorce decree because there was no evidence of record that the husband was not given proper notice of the order. Tremble v. Tremble, 288 Ga. 666, 706 S.E.2d 453 (2011).
Trial court did not abuse the court's discretion by denying the appellant's motion to set aside based on not being given proper notice of the September 2017 order of the denial because the record showed that the court clerk testified that adequate postage was used to mail a copy of the order to the appellant at the appellant's record address and that the copy was never returned to the clerk's office. Moore v. State, 308 Ga. 556, 842 S.E.2d 65 (2020).
Notice of attorney's withdrawal.
- Issuance of an order of withdrawal of an attorney by the trial court completed the involvement of the court with the withdrawal; if the order did not reach the client, it was through no fault of the court, and the client's redress, if any, was with the client's attorney. Dunn v. Duke, 216 Ga. App. 829, 456 S.E.2d 65 (1995).
Findings
Absence of findings as to receipt of notice.
- Trial court erred by denying the borrowers' motion under O.C.G.A. § 9-11-60(g) to set aside the order granting a bank summary judgment because while the trial court established that notice was sent, the court failed to make any findings as to whether the attorneys for the borrowers had received notice of the order. C & R Fin. Lenders, LLC v. State Bank & Trust Co., 320 Ga. App. 660, 740 S.E.2d 371 (2013).
Trial court's order entered on remand had to be reversed because the court made no finding as to whether the court's statutory duty to notify all parties of the judgment was carried out. Wright v. Wright, 300 Ga. 114, 793 S.E.2d 96 (2016).
Because the trial court did not make any findings as to whether the defendant was given notice of the September 2017 order denying the defendant's motion for an out-of-time appeal, and the trial court denied the defendant's motion to set aside that order on the ground that the supreme court had affirmed an order denying a different motion, the trial court erred in denying the defendant's motion to set aside the court's September 2017 order denying the defendant's motion for an out-of-time appeal. Moore v. State, 305 Ga. 699, 827 S.E.2d 657 (2019).
Remand for willfulness issue when trial court failed to make explicit willfulness finding.
- Because the trial court failed to explicitly make a finding of willfulness in the court's order dismissing the plaintiff's damages complaint for failure to comply with an order to compel, the matter was remanded directing the trial court to conduct a hearing on the issue of willfulness. Because the matter was remanded on the issue of willfulness, it was unnecessary for the appeals court to consider the plaintiff's claim that counsel did not receive notice of the trial court's order granting the defendant's motion to compel. Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).
Construction with O.C.G.A.
§ 9-11-60(d)(2). - Because the trial court failed to make an explicit finding of wilfulness in the court's order dismissing the plaintiff's case for failure to comply with an order compelling discovery, dismissal was reversed, and the case was remanded for a hearing on the issue; as a result, the appeals court declined to consider an argument that the plaintiff's counsel did not receive notice of the order compelling discovery, pursuant to O.C.G.A. § 15-6-21(c), as any remedy for an alleged lack of notice was to pursue a motion to set aside pursuant to O.C.G.A. § 9-11-60(d)(2). Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).
Inherent finding of lack of notice.
- Although there was no specific finding that notice to a party's counsel was not made, such a finding was inherent in the trial court's action granting the party's motion to set aside the judgment because counsel did not learn that the judgment had been filed until after the time for filing a notice of appeal expired. Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812, 403 S.E.2d 94 (1991).
Timeliness
Remedies upon judge's refusal to obey subsection (a).
- Prior to the effective date of the 1983 Constitution, the only sanction provided by law for the failure or refusal of a judge to obey the provisions of O.C.G.A. § 15-6-21(a), requiring prompt judicial action, was found in § 15-6-21(d), impeachment and removal from office. The Constitution of 1983 (Ga. Const. 1983, Art. VI, Sec. I, Para. IV) now provides that the superior and appellate courts shall have the power to issue process in the nature of mandamus. Graham v. Cavender, 252 Ga. 123, 311 S.E.2d 832 (1984).
Attorney not relieved of responsibility to pursue appeal.
- Failure of court to rule on judgment notwithstanding the verdict for almost 13 months did not excuse counsel from failing to check on the motion's status, the subject of a malpractice suit against the attorney. Hipple v. Brick, 202 Ga. App. 571, 415 S.E.2d 182 (1992).
Conclusion of time period does not close record.
- There is no provision in O.C.G.A. § 15-6-21 for closing the record as a result of a trial court's failure to make a timely ruling; therefore, the tardiness of the trial court's ruling did not close the record and was not a valid basis for objecting to the admission of the trial counsel's affidavit. Brooks v. State, 265 Ga. 548, 458 S.E.2d 349 (1995).
Supreme court was unable to determine whether the trial court's denial of the defendant's motion to set aside an order denying an out-of-time appeal was proper because the order denying the motion made no findings of fact whatsoever; in the defendant's motion to set aside, the defendant stated that the defendant never received the trial court's 2008 order until 2010, that the defendant made numerous written inquiries and several telephone calls concerning the status of the motion for out-of-time appeal, and that in 2009, the defendant filed a motion for a ruling thereon. Pierce v. State, 289 Ga. 893, 717 S.E.2d 202 (2011).
Failure to timely decide motion.
- Trial court erroneously dismissed the insured party's uninsured motorist action against the insurer. The insured party, by attempting service twice, showed due diligence under O.C.G.A. § 33-7-11(e) in determining that the defendant, who allegedly struck the insured party, had either departed from the state or could not, after due diligence, be found within the state. The insured party made all three requests for service by publication before the statute of limitations under O.C.G.A. § 9-3-33 expired, and the latter two requests were pending for decision by the trial court for more than three months in violation of O.C.G.A. § 15-6-21(b). Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 637 S.E.2d 86 (2006).
Trial court properly dismissed a landowners' petition for mandamus filed against a judge as premature and for failing to state a claim because the landowner opted to file the petition, but could have requested a hearing to allow the judge an opportunity to rule on the previously filed motions; the 90-day ruling period applicable to the motions pursuant to O.C.G.A. § 15-6-21(b) had not yet expired at the time the petition had been filed. Voyles v. McKinney, 283 Ga. 169, 657 S.E.2d 193 (2008).
Defendant was not entitled to relief based on the trial judge's 954-day delay in ruling on the defendant's motion to open a prejudgment default, which the defendant contended increased three-fold the defendant's liability for prejudgment interest because: (1) there was no evidence that the defendant ever sought a ruling after the 90-day period set out in O.C.G.A. § 15-6-21(b) had expired; and (2) the only remedies for a violation of § 15-6-21 were mandamus and impeachment of the trial judge. Water Visions Int'l, Inc. v. Tippett Clepper Assocs., 293 Ga. App. 285, 666 S.E.2d 628 (2008).
Speedy trial demand is not motion to be decided in 90 days.
- O.C.G.A. § 15-6-21(b), requiring that motions be decided within 90 days, did not require ruling on the defendant's speedy trial demand within 90 days, because the demand was simply the required notice of the assertion of the right, and the trial court ruled on the defendant's actual motion for discharge and acquittal based on that demand on the same day the motion was filed; further, if a judge fails to rule within the 90-day period, the remedy is not to require the motion to be granted. Johnson v. State, 300 Ga. 252, 794 S.E.2d 60 (2016).
Nine month delay in ruling on motion for mandamus.
- Trial court's order denying the filing of a mandamus petition was error because a justiciable issue was patent from the face of the petition, namely, whether the judge failed to comply with the duty to timely rule on the pending motion since the record established that the petitioner had been waiting to rule on the motion for nine months, which was considerably outside the maximum period during which the judge was required to decide the pending motion. Bellamy v. Rumer, 305 Ga. 638, 827 S.E.2d 269 (2019).
RESEARCH REFERENCES
Am. Jur. 2d.
- 20 Am. Jur. 2d, Courts, § 45 et seq. 46 Am. Jur. 2d, Judges, § 16 et seq.
C.J.S.- 21 C.J.S., Courts, § 156 et seq.
ALR.- Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits, 54 A.L.R.2d 1229.
Power of court to remove or suspend judge, 53 A.L.R.3d 882.
Misconduct in capacity as judge as basis for disciplinary action against attorney, 57 A.L.R.3d 1150.