Gilham v. STAMM & COMPANY, INC.

162 S.E.2d 248, 117 Ga. App. 846, 1968 Ga. App. LEXIS 1260

• Court: Court of Appeals of Georgia
• Decided: June 6, 1968
• Docket: 43526
• Status: Published

Opinion

Eberhardt, Judge.

A default judgment rendered in a suit on account is subject to a motion to set aside under the Civil Practice Act § 60 (d) (Code Ann. § 81A-160 (d)) at the in stance of an individual defendant sued jointly with a corporate defendant where the sworn itemized statement of the account attached to the complaint affirmatively shows that the items and services were sold and delivered to the corporate defendant only and that no claim in fact exists against the individual defendant from whom recovery is sought for the indebtedness of the corporation — “a clear case of non-liability.” Keith v. Darby, 104 Ga. App. 624, 626 (122 SE2d 463). The exhibits showing all items to have been charged to the corporate defendant must control over the general allegation in the petition that the “defendants are indebted to plaintiff” in a stated amount. Saldivia v. Saldivia, 218 Ga. 98 (126 SE2d 615); Williams v. Appliances, Inc., 91 Ga. App. 608 (4) (86 SE2d 632). Since this is a default judgment there is no presumption that there was proof before the court that would have authorized a finding of liability on the account as to Gilham, the individual. Bayne v. Sun Finance Co. No. 1, 114 Ga. App. 27 (5) (150 SE2d 311). Consequently, as to him the judgment must be set aside. Dell v. Kugel, 99 Ga. App. 551 (2) (109 SE2d 532).

Argued March 4, 1968 Decided June 6, 1968. Johnston & McCarter, John M. McCarter, for appellant. Lipshutz, Macey, Zusmann & Sikes, Morris Macey, David Butler, for appellee.

Judgment reversed.

Felton, C. J., and Whitman, J., concur.