Opinion
42799.
ARGUED MAY 4, 1967.
DECIDED MAY 26, 1967.
Action on note. Chattooga City Court. Before Judge Westbrook.
Gearinger Vineyard, H. H. Gearinger, for appellant.
Shaw, Stolz Fletcher, Irwin W. Stolz, Jr., for appellees.
1. Enumerations of error not supported by argument or citations in the brief are treated as abandoned.
2. In an action ex contractu not involving unliquidated damages which was automatically in default because of the failure to file a timely answer, no harmful error resulted from the failure of the trial judge to rule upon an affidavit of the appellant to open the default which failed to show a meritorious defense.
ARGUED MAY 4, 1967 — DECIDED MAY 26, 1967.
The Bank of LaFayette commenced this action on April 4, 1963, in the City Court of Chattooga County to recover the amount due, including interest and attorney fees, from Milton Hix, the maker, and Winfred Lowrance, the indorser, on a promissory note payable to the bank. On May 1, 1963, within the time allowed for filing defensive pleadings, the defendant Lowrance filed a pleading denominated a demurrer seeking dismissal of the action against him, in which he denied the allegations as set forth in the petition, and pleaded affirmatively, among other things, that he indorsed the note, the proceeds of which were used to pay him for automobiles sold to the maker, after informing the bank of a report that certain real estate which the maker was using as security for the loan was in fact owned by the maker's wife, upon assurance from the bank and its attorney, whose fee was deducted from the proceeds of the note, that a title search by the attorney revealed that the property was good security.
On May 28, 1963, some 24 days after expiration of the time for filing defensive pleadings, he filed what purports to be an answer alleging a failure of consideration in that he received no benefit from the transaction, and set forth facts substantially in accord with those alleged in his so-called demurrer. On July 23, 1966, the trial court overruled the demurrer, and on July 28, 1966, the bank moved to strike the answer. On September 10, 1966, Lowrance filed a pleading designated an affidavit to open the case. On December 12, 1966, the trial judge sustained the bank's motion to strike the answer and rendered judgment in favor of the bank against Lowrance. Subsequently Lowrance sought to attack the proceedings by means of a motion for new trial, a motion to set aside and void the orders of December 12, 1966, and an amended motion for new trial, and he appealed to this court upon the overruling of his motion and amended motion for a new trial.
1. The first enumerated error is directed to the trial court's order overruling the so-called demurrer to the petition, which the trial court treated as a speaking demurrer, and the second enumerated error is directed to the order sustaining the bank's motion to strike the late answer. There being no argument or citation in the appellant's briefs in support of these alleged errors, they are treated as abandoned. See Rule 17 (c) (2) of this court.
2. The remaining three enumerated errors are directed to the judgment against the appellant, the failure to make a specific ruling on the affidavit to open the case, which was on file when the judgment was rendered, and the overruling of the motion for a new trial. The appellant insists that the affidavit to open the case met the requirements of Code Ann. § 110-404, and "that the basic error here is not based upon the court's denying Lowrance the right to open the case but in never ruling at all on the affidavit." Code Ann. § 110-401 specifically provides that any case not answered on or before its appearance day is automatically in default unless the time for filing an answer has been extended as provided by law. This section allows the defendant 15 days as a matter of right to open the default, upon payment of costs, and thereafter if the case is still in default the plaintiff is entitled to judgment on the pleadings without a jury trial, unless the action is ex delicto or involves unliquidated damages, as was not the case here. Code Ann. § 110-404 vests in the judge a discretion to allow a default to be opened, upon payment of costs, for providential cause preventing the filing of a plea, for excusable neglect, or for other reasons, if the judge shall determine that a proper case has been made to open the default. In addition to a showing of valid reasons for opening the default, the defendant under oath must set up a meritorious defense, offer to plead instanter, and announce that he is ready to proceed with the trial. Aside from the reasons set forth in the affidavit explaining the failure to file an answer, which merely show a failure to file by the attorney on account of the press of other business and reliance upon his partners at that time who were not admitted to practice in Georgia, the proffered answer shows nothing more than that the appellant obligated himself as an indorser of the note after relying on the statement of an attorney that the maker's security was good, and this is no defense to the action.
Under these circumstances the failure of the trial judge to rule on the affidavit to open the default was not harmful error to the appellant, and the case being automatically in default upon the failure to file a timely answer to the petition, on an action ex contractu and not involving unliquidated damages, the trial judge properly rendered judgment against Lowrance based on the allegations of the petition, and thereafter properly overruled the appellant's motion and amended motion for a new trial.
Judgment affirmed. Deen and Quillian, JJ., concur.