Smith v. Mullinax , 122 Ga. App. 833 ( 1970 )

Hall, Presiding Judge.

1. The motions to dismiss the appeals are denied. The default judgment on liability against Hill which was entered on July 9, 1969, was not a final judgment subject to direct appeal and could not become the law of the case by virtue of not appealing within thirty days from the order. See State Hwy. Dept. v. Rosenfeld, 120 Ga. App. 439 (1) (170 SE2d 837).

2. Several of the enumerations deal with a contended lack of jurisdiction and insufficiency of process as to Arrow and, by extension, as to its insurer Continental. It is not necessary to list the extensive evidence or relate the arguments advanced by defendants on this subject. The documentary evidence in the record supports the trial court’s finding that the named defendant Arrow Transfer, Inc. had an agent for service of process in Georgia prior to the filing of this suit and that this agent was properly served. The court did not err in overruling the objections and motions pertaining to this matter.

3. The summary judgments against Arrow and Continental are based upon the default judgment (liability only) against Hill. Defendants contend the default judgment against Hill was improper since his failure to appear for the taking of depositions was not "wilful” as required by § 81A-137 (d), but resulted from his lack of actual notice. The court’s order simply recited that Hill failed to appear. There was no mention of wilfulness, nor does the evidence suggest it.

There are no Georgia cases directly on point, but Code Ann. §81A-137 (d) is identical to Rule 37 (d) of the Federal Rules which has been interpreted to require "a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.” Weston & Brooker Co. v. Continental Casualty Co., 303 F2d 91, 93; Brookdale Mill, Inc. v. Rowley, 218 F2d 728; 4 Moore’s Federal Practice, § 37.04. Moore explains that this is because subdivision (d), unlike the other subsections of the rule, provides only for the harsh sanctions of dismissal, default or the striking of pleadings. "If the failure is not wilful, the rule has no application. Indeed constitutional doubts would be raised were the drastic sanctions of this subdivision to be applied except to a wilful failure.” 2A Barron & Holtzoff, 553, 554, § 855. See Societe Internationale &c. v. Rogers, 357 U. S. 197 (78 SC 1087, 2 LE2d 1255).

It is true that the trial court has a discretion in whether the sanctions of dismissal or default should be entered under Code Ann. § 81A-137 (d). Hohlstein v. White, 117 Ga. App. 207 (1) (160 SE2d 232); Williamson v. Lunsford, 119 Ga. App. 240 (1) (166 SE2d 622). However, in considering another subsection of the Rule, the Georgia Supreme Court has also recognized the desirability of choosing the less harsh measure when circumstances warrant stating that "Justice is the object of all judicial investigations.” Milholland v. Oglesby, 223 Ga. 230 (154 SE2d 194).

Since Hill had no actual notice to appear for a deposition and the record discloses he has subsequently been located and is now available for discovery and trial, we cannot believe justice would be served in this case by imposing a sanction which would preclude a trial on the merits. Under similar facts, the 10th Circuit Court of Appeals reversed the default as an abuse of discretion. Patterson v. C. I. T. Corp., 352 F2d 333.

As the court abused its discretion in entering the default judgment against Hill, it follows, of course, that the court erred in granting summary judgment against Arrow and Continental since their liability is only vicarious to Hill’s.

Judgment reversed.

Bell, C. J., Jordan, P. J., Eberhardt, Deen and Whitman, JJ., concur. Pannell, Quillian and Evans, JJ., dissent.