Or acts of the adverse party unmixed with the negligence or fault of the movant. It's post-judgment obviously and the motion to set aside must be based on fraud, none of which is alleged, pled or shown accident, there's no *337 accident here or mistake. Default may be opened after judgment and this is a post-judgment default, not a 9-11-55 (b) pre-judgment default. In ruling on Piggly Wiggly's motion, the trial court held: "OCGA 60 controls, the Official Code of Georgia 9-11-60 controls in this situation. Piggly Wiggly also contends the trial court erred, as a matter of law, by applying the standards set forth in OCGA § 9-11-60 (d) to its discretionary motion to set aside a judgment entered in the same term of court, by not exercising its discretion to set aside the default judgment for any meritorious reason, and by not allowing the presentation of evidence relevant to its meritorious defenses. Piggly Wiggly contends the trial court erred by failing to find the circumstances of this default provided a meritorious reason to set aside the default judgment, by failing to find that its defenses provided a meritorious reason to set aside the default judgment, and also by failing to find that the conduct of McCook's attorney provided a meritorious reason to set aside the default judgment. Piggly Wiggly contends the trial court decided the motion applied based only on the criteria set forth in OCGA § 9-11-60 (d), and refused to exercise the court's inherent discretionary authority to set aside for meritorious reasons a judgment entered within the same term of court. The trial court denied the motion to set aside and, consequently, did not consider the motion to open the default. McCook's death was the result of a heart attack that caused him to fall in the store, and not a slip and fall. For the required showing of a meritorious defense, Piggly Wiggly set up the defense that Mr. Piggly Wiggly also filed the pleadings required by OCGA § 9-11-55 (b) to open a default. The motion to set aside the default judgment was based on the trial court's inherent authority to set aside or modify a judgment within the same term of court in which the judgment was entered. Then, in the same term of court in which the default judgment was entered, Piggly Wiggly moved to set aside the default judgment and open the default. McCook attempted to levy against a Piggly Wiggly store. Piggly Wiggly, however, did not learn of the default judgment until Mrs. McCook obtained a default judgment against Piggly Wiggly for $589,858.87 that was based on evidence presented on damages. Piggly Wiggly was timely served, but, because of a mistake at corporate headquarters in Alabama, did not file an answer within the 30 days prescribed by law or in the 15-day grace period.Īfter the time expired in which Piggly Wiggly could file an answer as a matter of right, Mrs. McCook dismissed the action in federal court and refiled the case in Ben Hill County Superior Court. After *336 Piggly Wiggly filed a timely answer denying liability, Mrs. McCook filed a wrongful death action against Piggly Wiggly in federal court, contending his death was caused by his fall in the Piggly Wiggly in Fitzgerald, Georgia. Piggly Wiggly contends the trial court erred by failing to exercise its inherent discretion to set aside a default judgment entered within the same term of court.Īfter Mr. (collectively "Piggly Wiggly") that the trial court erred by refusing to set aside a default judgment in favor of Annie Lou McCook, individually and as administratrix of the estate of her husband, John McCook. d/b/a Piggly Wiggly of Fitzgerald and Bruno's, Inc. ![]() This discretionary appeal was granted to consider the contention of Piggly Wiggly Southern, Inc. Traynham, Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Plybon, Martin, Snow, Grant & Napier, John C.
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