Opinion
55120.
ARGUED JANUARY 12, 1978.
DECIDED FEBRUARY 8, 1978. REHEARING DENIED MARCH 2, 1978.
Breach of contract. Fayette Superior Court. Before Judge Whalen.
Scheer Elsner, Michael Weinstock, for appellant.
Thompson, Stovall, Stokes Thompson, James F. Stovall, III, for appellee.
Hill Aircraft filed suit against Strother for breach of contract. Strother filed an answer and counterclaim. Interrogatories were submitted and responded to by both parties, and Strother also responded to a request for admissions served by the plaintiff. The parties then entered into an agreement to prepare a pre-trial order, which was submitted to the court, and the trial was set on the calendar. On January 12, 1977, the trial judge granted Hill's motion to strike Strother's answer and counterclaim when neither Strother nor his counsel responded to the call of the case and the judge had not heard from anyone in regard to the absence, and entered default judgment. Strother filed a motion to set aside this judgment, which the trial court treated as one to open default, and denied.
For previous appearance of this case see Strother v. Hill Aircraft c. Corp., 142 Ga. App. 206 ( 235 S.E.2d 647) (1977).
1. Hill's motion to dismiss this appeal is denied.
2. We find no error in the application of the "three-minute rule" (Rule 41 of the Rules of the superior court, as codified by Code Ann. § 24-3341) in this case. See Schwartz v. C. S. Mtg. Co., 142 Ga. App. 682, 683 (3) ( 236 S.E.2d 856) (1977); Lester v. Master Charge, 141 Ga. App. 593 ( 234 S.E.2d 164) (1977); Perry v. Dudley, 141 Ga. App. 455, 457 (4) ( 233 S.E.2d 849) (1977) and cits.; George v. Handshakers, Inc., 140 Ga. App. 641, 642 (1) ( 231 S.E.2d 575) (1976).
3. Default judgment was also authorized since the complaint was for a sum certain remaining to be paid under the contract, which Strother, in fact, did not deny. Henry v. Adair Realty Co., 141 Ga. App. 182, 183 (1) ( 233 S.E.2d 39) (1977); Galanti v. Emerald City Records, 144 Ga. App. 773 (1978). While the counterclaim alleged fraud, which was not an unliquidated claim, the striking of the counterclaim was not enumerated as error.
Judgment affirmed. Quillian, P. J., and McMurray, J., concur.