Davis v

Butler, 240 Ga. App. 72, 522 S.E.2d 548 (1999). Publication in official county newspaper sufficient. — Publication of trial calendar in official county newspaper is notice of trial pursuant to subsection (c) of this section. Brown v. Citizens & S. Nat’l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980); East India Co. v. Marsh & McLennan, Inc., 160 Ga. App. 529, 287 S.E.2d 574 (1981). Publication of date and time of trial in the official organ of the county constitute sufficient notice under subsection (c) of this section. Kleiner v. Blender, 152 Ga. App. 426, 263 S.E.2d 232 (1979). 9-11-40 Requirements of paragraph (c)(1) are complied with by mailing notice that case will be on the trial calendar on a given date to the attorney for the litigant, when no question is raised that the notice was received in due course of mail. Trice v. Howard, 130 Ga. App. 895, 204 S.E.2d 808 (1974). Notice of exact day of trial is not required. Redding v. Raines, 239 Ga. 865, 239 S.E.2d 32 (1977). Lack of actual notice not determinative. — Even though the party may not have actual notice, if the requirements for giving notice are complied with, notice provisions of subsection (c) of this section are satisfied. Holbrook v. Halpern Enters., Inc., 141 Ga. App. 648, 234 S.E.2d 187 (1977). Notice to counsel presently of record sufficient. — Giving of notice to attorney who is counsel of record as of time the notice is mailed is sufficient compliance with subsection (c) of this section. Tallman Pools of Ga., Inc. v. Napier, 137 Ga. App. 500, 224 S.E.2d 426 (1976). Notice to withdrawn counsel. — When party’s original counsel of record, who withdraws from the case, receives notice of the trial date, the party is on notice as to the date in accordance with this section, despite the fact that the original counsel might not actually inform the party of the notice before withdrawing from representation. McNally v. Stonehenge, Inc., 242 Ga. 258, 248 S.E.2d 653 (1978). Default judgment set aside when notice sent to former counsel. — When the defendant’s counsel withdraws from the case and notifies the court, but the only notice of the trial date is sent to the former counsel, who makes no effort to inform the former client, a motion to set aside a subsequently entered default judgment should be granted. Georgia Hwy. Express, Inc. v. Whaley, 166 Ga. App. 662, 305 S.E.2d 411 (1983). Right to rely on compliance with notice requirements. — Parties have a right to rely that notice of trial assignments is given in compliance with court rules and this section. Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975). 550 Especially in light of the requirements of O.C.G.A. § 9-11-40(c) and Ga. Unif. St. Ct. R. 8.3, regarding the trial calendar and notice to the parties, the defendant was entitled to rely on the trial court’s written order specifically setting a trial date for October 22, 2001, and, therefore, the trial court erred in holding a bench trial in the defendant’s absence on an earlier date without properly placing the earlier date on the trial calendar or giving proper notice. Smith v. Williams, 256 Ga. App. 664, 569 S.E.2d 598 (2002). Presumption of performance of clerk’s duty. — Trial court may properly take judicial notice of the presumption that the court clerk gave notice as required by law. Trice v. Howard, 130 Ga. App. 895, 204 S.E.2d 808 (1974). Defendant entitled to day in court when notice lacking. — Defendant is entitled to the defendant’s day in court on the main case if in fact the defendant proves the essential requirement of assignment notice has been overlooked or absent. Wilkes v. Ricks, 126 Ga. App. 266, 190 S.E.2d 603 (1972). Failure to give proper notice of trial to adversary is reversible error. Siano v. Spindel, 136 Ga. App. 288, 220 S.E.2d 718 (1975). Lack of notice as ground for setting aside judgment. — Lack of trial notice as required by subsection (c) of this section is ground for setting aside the judgment. Redding v. Commonwealth of Am., Inc., 143 Ga. App. 215, 237 S.E.2d 689 (1977). Failure to give proper notice of trial. — When the face of the record shows without contradiction that there was a total lack of notice to the defendant of the trial assignment of the defendant’s case, the trial court erred in denying the motion to set aside the judgment. Shelton v. Rodgers, 160 Ga. App. 910, 288 S.E.2d 619 (1982). Trial of counterclaim, as well as dismissal of the main claim, without proper notice having been given to opposing counsel was error and warranted reversal. Health Images, Inc. v. Green, 207 Ga. App. 455, 428 S.E.2d 378 (1993). Discretion of court as to setting aside of judgment allegedly obtained 9-11-40 without notice. — Trial court must exercise discretion in determining whether under all the circumstances a judgment obtained in the absence of the party or the party’s counsel, who contends to having no knowledge of the publication of the calendar or other notice of the calendar, should be set aside. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979). Notice of trial by publication of the court calendar in the Fulton County Daily Report is notice pursuant to subsection (c) of Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. § 9-11-40); however, this does not mean that the trial court is without authority to set aside the judgment or grant a new trial under Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60), if the circumstances warrant such relief. Spyropoulos v. Linard Estate, 243 Ga. 518, 255 S.E.2d 40 (1979). Notice held adequate. — When negligence action is set for trial on September 11, and trial calendar for September 11 is published on August 31 in the official organ of the county, properly listing the case, the defendants received adequate notice of the trial date. Martin v. Foxboro Co., 149 Ga. App. 719, 256 S.E.2d 34 (1979). Defendant’s claim that sufficient notice of the trial date was not provided was rejected as the record reflected that a scheduling order was issued by the trial court, the trial date was published on the trial calendar, and the defendant and the defendant’s counsel were listed in the notice. It was clear that the defendant was aware of the trial calendar based on an email from the defendant’s counsel. Surles v. Cornell Corr. of Cal., Inc., 290 Ga. App. 260, 659 S.E.2d 683 (2008). It was not error to refuse to set aside judgment for lack of notice under subsection (c) of this section since the court clerk testified that it is not the clerk’s practice to fail to mail notice to any attorney, and when the deputy clerk testified the deputy mailed out the court calendar with a cover letter to all counsel, and that the letter had not been returned to the clerk’s office undelivered. Belle Interiors, Inc. v. Norman, 130 Ga. App. 669, 204 S.E.2d 364 (1974). Clerk’s oversight in giving notice of assignment. — Trial court erred in deny- 551 Assignment of Cases for Trial (Cont’d) ing the motion to set aside the judgment when the record in the case showed that there was a total lack of notice to the defendant of the assignment of the defendant’s case to a trial calendar because of a clerical oversight in recognizing the defendant’s change of address. Taylor v. Chester, 207 Ga. App. 217, 427 S.E.2d 582 (1993). By failure to plead, the defendant waived notice of trial on the limited issue of the amount of damages, and there was no requirement to place the case on the trial calendar nor for the plaintiff to comply with the local court rule. Newell Rd. Bldrs., Inc. v. Ramirez, 126 Ga. App. 850, 192 S.E.2d 184 (1972). Case placed on calendar with notice ripe for trial despite local rule. — When the trial court places a case on a calendar, with notice to the parties as required by this section, it is ripe for trial, notwithstanding any local rule stating that it could not be placed on a trial calendar without a pretrial. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979). Party chargeable with notice that case may be called. — Party or a party’s counsel is chargeable with notice that the party’s case, when ripe for trial, may be called for trial at any time during a term of court, and even out of its regular order on the docket, in the court’s discretion, provided the case is placed on a calendar duly prepared and notice is given of the trial. Grindle v. Eubanks, 152 Ga. App. 58, 262 S.E.2d 235 (1979). Placement of appeal from probate court on calendar. — As it was the express command of former Code 1933, 9-11-40 § 6-601 (see now O.C.G.A. § 5-3-30) that appeals of probate proceedings be tried by a jury at the first term after entry of the appeal, it would appear to be the duty of the clerk to place the appeal upon the trial calendar for the first term after docketing; if it cannot be reached at that term, or should the court defer the matter, neither party should be penalized. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978). No greater duty is placed upon counsel for a party appealing to the superior court to bring a case to trial than is placed upon counsel for the appellee, as while the appellant is the moving party as far as the appeal is concerned, once the appeal and the supporting record is docketed in the superior court, it is entitled to de novo treatment. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978). Dismissal of appeal from probate court not warranted for failure to request placement on calendar. — In case appealed from probate court to superior court, when counsel for appellee requests that case be assigned for trial at the earliest available date and serves notice of this request upon counsel for appellant, it would be folly to require the appellant’s counsel to also file a similar demand or suffer dismissal of the appellant’s case on appeal. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978). Dismissal in April 1978, of case appealed from probate court to superior court in September 1977, in which appellee had requested trial at the earliest possible date, on grounds that the appellant had taken no action to obtain a trial since entry of the appeal nor shown good cause for delay, was error. Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 (1978).