Griffin v. FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC.

Court of Appeals of Georgia

Griffin v. FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC.

253 S.E.2d 422, 149 Ga. App. 22, 1979 Ga. App. LEXIS 1699

Court of Appeals of Georgia·Decided February 9, 1979·No. 56925·Published·Cited by 4 cases

Opinion

Banke, Judge.

The plaintiff sued for $495 allegedly due under a contract and obtained a default judgment for that amount. The defendant filed a motion to set aside the judgment alleging that the plaintiffs claim was for unliquidated damages, that these damages had not been proven, and that this created a non-amendable defect on the face of the record. The court denied the motion, and the defendant appeals. Held:

A plaintiff in an action ex contractu may obtain a default judgment without introducing evidence as to the amount of damages provided the damages are liquidated. If the claim involves unliquidated damages, the plaintiff is required to introduce evidence and establish the amount of damages before a court without a jury. CPA § 55 (a) (Code Ann. § 81A-155 (a)). This was clearly an action ex contractu, and there is nothing in the complaint *23 to indicate that the damages were unliquidated. Accord, Allied Store Utilities Co. v. Bennett, 64 Ga. App. 524 (2) (13 SE2d 906) (1941). Thus, the defendant failed to establish a non-amendable defect appearing on the face of the record, and the court properly denied defendant’s motion to set aside. CPA § 60 (d) (Code Ann. § 81A-160 (d)).

Submitted November 14, 1978 — Decided February 9, 1979. Robert Connelly, for appellant. Levy & Adams, D. Merrill Adams, M. Alvin Levy, for appellee.

Judgment affirmed.

Deen, P. J., and Smith, J., concur.

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Banke, Judge.

The plaintiff sued for $495 allegedly due under a contract and obtained a default judgment for that amount. The defendant filed a motion to set aside the judgment alleging that the plaintiffs claim was for unliquidated damages, that these damages had not been proven, and that this created a non-amendable defect on the face of the record. The court denied the motion, and the defendant appeals. Held:

A plaintiff in an action ex contractu may obtain a default judgment without introducing evidence as to the amount of damages provided the damages are liquidated. If the claim involves unliquidated damages, the plaintiff is required to introduce evidence and establish the amount of damages before a court without a jury. CPA § 55 (a) (Code Ann. § 81A-155 (a)). This was clearly an action ex contractu, and there is nothing in the complaint *23 to indicate that the damages were unliquidated. Accord, Allied Store Utilities Co. v. Bennett, 64 Ga. App. 524 (2) (13 SE2d 906) (1941). Thus, the defendant failed to establish a non-amendable defect appearing on the face of the record, and the court properly denied defendant’s motion to set aside. CPA § 60 (d) (Code Ann. § 81A-160 (d)).

Submitted November 14, 1978 — Decided February 9, 1979. Robert Connelly, for appellant. Levy & Adams, D. Merrill Adams, M. Alvin Levy, for appellee.

Judgment affirmed.

Deen, P. J., and Smith, J., concur.

Griffin v. FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC., 253 S.E.2d 422, 149 Ga. App. 22, 1979 Ga. App. LEXIS 1699 (Ga. Ct. App. 1979).

Pincite

253 S.E.2d 422 (Griffin v. FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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