Leaving a Petitioner on Read: No Default Judgment for Failing to Respond to a Petition for Review
By: Chauncey Mullins
The Magistrate Court, often referred to as the “small claims” court in Georgia, adjudicates cases involving controversies of $15,000 or less. This court is designed for accessibility and typically provides expedited decisions. Consequently, appeals from Magistrate Court decisions are frequent.
In 2022, the Georgia Legislature enacted the Superior and State Court Appellate Practice Act (the Act), O.C.G.A. § 5-3-1 et seq. (See Ga. L. 2022, p. 767, §§ 1-1 & 3-1). The Act “[p]rovide[s] a single, modern, and uniform procedure, termed a ‘petition for review,’ for appealing a decision made by a lower judicatory to superior or state courts.” O.C.G.A. § 5-3-2 (b) (1). Essentially, this act provides the framework for appealing Magistrate Court decisions to State or Superior Court. Although the rules appear straightforward, their practical application has already presented challenges since their enactment.
For instance, when a party files a lawsuit in Magistrate Court and receives a final judgment, a party may file a petition for review in the county’s State or Superior Court and notify the opposing party. According to the Act, “The respondent shall file a response to a petition for review with the reviewing court within 30 days after being served with a copy of the petition for review….” O.C.G.A. § 5-3-8(a) (emphasis added). If no response is filed within 30 days, the petitioner may seek a Motion for Default Judgment, which is disadvantageous for the respondent. This raises the question of whether a failure to respond to such appeal requires reversal of the Magistrate Court’s judgment.
The Georgia Court of Appeals recently addressed this issue in Clark v. Jefferson Capital Sys., LLC, 374 Ga. App. 167, 911 S.E.2d 713 (2025). There, Jefferson Capital filed suit against Clark in Magistrate Court of Douglas County and obtained a money judgment for an unpaid loan. Id. at 167-68. Clark subsequently filed a petition for review in Superior Court. Jefferson Capital did not respond, and Clark moved for default judgment. Id. at 168. The Superior Court upheld the Magistrate Court’s judgment in favor of Jefferson Capital, prompting Clark to appeal to the court of appeals. Id. Clark argued the Superior Court should have granted default judgment against Jefferson Capital due to its failure to respond in Superior Court. Id.
The court of appeals disagreed and affirmed the lower court’s decision, stating, “O.C.G.A. § 5-3-8(a) does not specify a penalty for failure to respond, indicating it is directory rather than mandatory.” Id. at 169. The court also reasoned, “Clark was not prejudiced because she was already aware of Jefferson Capital's claims.” Id. at 169.
At first glance, a default judgment may appear appropriate when one party files a petition and the opposing party fails to respond. However, granting default judgment in such circumstances permits a party to prevail on procedural grounds rather than on the merits. As the court emphasized, “Our conclusion is also in accord with the well-established rule that ‘[w]henever possible[,] cases should be decided on their merits for default judgment is not favored in law.’” (Citation and punctuation omitted.) Id. at 171 (citing Gilliam v. Love, 275 Ga. App. 687, 688 (621 SE2d 805) (2005)).
Accordingly, when a prevailing party in Magistrate Court is subject to a petition for review in State or Superior Court and does not file a response, the absence of a response does not result in default. Because both parties are already aware of the underlying claims, Georgia courts prefer to resolve cases on their merits rather than on procedural grounds. Therefore, if you win in Magistrate Court and the opposing party files a petition for review, leaving ‘em “on read” will not result in default judgment. As Marcus Aurelius famously said, “[n]ot every action requires a reaction.”
Attorney Contact Info
Chauncey Mullins
chauncey.mullins@swiftcurrie.com
404.888.6135
