The Levin Co. Inc. d/b/a Wonderful World of Children v. Walker

We granted The Levin Company, Inc.’s Levin’s application for interlocutory review of the trial court’s order granting Karen Walker and Darryl Poole’s motion for reconsideration. Because the trial court was without authority to modify or vacate a judgment entered in a previous term of court, we reverse. This action arose as a suit on account by PYA/Monarch, Inc. Monarch. Monarch sued Levin for material supplied to a daycare business formerly run by Levin. Levin answered, contending that he was not indebted to Monarch because he had sold the daycare. Levin then filed a third-party claim against Walker and Poole, the new owners of the daycare, and the case was set for a trial on March 17, 2004.1 Levin’s third-party claim against Walker and Poole also included expenses Levin claimed were owed to him, as well as a claim for breach of the daycare purchase agreement. When Walker and Poole failed to appear for trial, the court entered a default judgment in favor of Levin in the amount of $161,073.88.

On July 19, 2004, Walker and Poole filed a “Motion to Set Aside Judgment or in the Alternative Motion to Correct Clerical Error,” pursuant to OCGA § 9-11-60 d 2 and g, contending that they did not receive notice of the March 17th hearing. Walker and Poole’s counsel apparently submitted a change of address to the trial court, but the notice of the March 17 hearing was sent to counsel’s old mailing address.