Price v. Guardian Mortgage Corporation., 137 Ga. App. 519, 224 S.E.2d 451 (1976)
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Summary
Judgment affirmed. Deen, P. J., and Quillian, J., concur.
Summary
Judgment affirmed. Deen, P. J., and Quillian, J., concur.
Text
Gershon, Ruden, Pindar & Olim, Jay E. Loeb, for appellant.
Guardian Mortgage Corporation filed suit against Robert Price on a promissory note, a copy of which was attached to the complaint as an exhibit. No answer was filed and a default judgment was entered for the unpaid principal sum and attorney fees. Price filed a motion to set the judgment aside, contending that there was a nonamendable defect on the face of the pleadings in that the note was usurious under Code Ann. Ch. 57-2, which deals with secondary security deeds. At the hearing it was urged as an additional ground of the motion that the note attached to the complaint was not signed by Price and hence presented no claim for relief. The motion was denied, and this appeal followed.
1. "A motion to set aside must be predicated upon some nonamendable defect which does appear upon the face of the record or pleadings. To be subject to motion to set aside, it is not sufficient that the complaint or other pleading fail to state a claim upon which relief can be granted, but the pleadings must affirmatively show that no claim in fact existed." CPA 60 (d) (Code Ann. 81A-160 (d)).
2. (a) "It is not correct practice to attach to a plea as exhibits original documents which will be relied on as evidence. Copies, not original papers, should be used as exhibits to pleadings." Johnson v. American Nat. Life Ins. Co.,
Storey & Obenschain, Robert W. Storey, Samuel L. Obenschain, Jr., for appellee.
1976
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