Henry v. Adair Realty Company., 141 Ga. App. 182, 233 S.E.2d 39 (1977)

Georgia Court Of Appeals

Status: ARGUED

Docket Number: 53181

Parts: SHULMAN, Judge.

Linked as:

Summary

Judgment affirmed. Quillian, P. J., and Stolz, J., concur.

Summary

Judgment affirmed. Quillian, P. J., and Stolz, J., concur.

Text

Gilbert & Blum, Fred A. Gilbert, for appellant.

Plaintiff Adair Realty Co. filed suit against defendant C. D. Henry and another on July 17, 1975, seeking a broker's commission allegedly due under a contract between the parties. An answer for both defendants was filed on September 9, 1975. Upon motion by plaintiff, the trial court struck the defensive pleadings and entered default judgment for plaintiff on April 28, 1976. On July 6, 1976, defendant Henry filed a motion to vacate judgment which was denied by order entered September 2, 1976. From this order defendant Henry appeals.

1. The record in this case shows that defendants' answer was filed on the 46th day following service on defendant Henry of the plaintiff's complaint. The time for filing an answer and opening the default as a matter of right had passed. Code Ann. 81A-155 (a). There was no effort to seek leave of court to open the default as required by Code Ann. 81A-155 (b). Plaintiff was entitled, therefore, to a default judgment ". . . as if every item and paragraph of the petition were supported by proper evidence without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages . . ." Code Ann. 81A-155 (a).

Appellant contends that the damages in this case were unliquidated and that it was, therefore, error to enter a default judgment for a specified amount without hearing evidence from the defendant. "A debt is liquidated when it is rendered certain what is due and how much is due. That certainty need not be contemporaneous with the agreement out of which it results." Bartee v. Andrews, 118 Ga. App. 364 (163 SE2d 753).

2. Under the provisions of Code Ann. 81A-152, appellant's contention that the trial court erred in entering a judgment without findings of fact and conclusions of law is without merit in that the judgment was entered upon the grant of a motion which merely confirmed that the case was in default.

3. Code Ann. 81A-160 specifies the manner in which a judgment may be attacked. The means prescribed therein are exclusive. Johnson v. Cook, 130 Ga. App. 575 (203 SE2d 882). Defendant's motion, styled "Motion to Vacate," must be treated as a motion to set aside if it is to have any validity at all. Since no allegations of lack of jurisdiction have been made, defendant must base the attack on ". . . some nonamendable defect which does appear on the face of the record or pleadings." Code Ann. 81A-160 (d). The record in this case reveals no such defect and there was no error in denial of defendant's motion to set aside.

Jones, Bird & Howell, Judson Graves, Dow N. Kirkpatrick, II, for appellee.

1977