S. J. Kilpatrick Construction Co. v. Sizemore

410 S.E.2d 386, 201 Ga. App. 193, 1991 Ga. App. LEXIS 1280

Opinion

Carley, Presiding Judge.

Appellant-plaintiff filed suit, seeking to recover on a promissory note. Although the complaint named “Richard D. Sizemore” as the defendant, the note attached thereto bore the name and signature of “Richard D. Sizemore, Jr.” The complaint was served at the residence of appellee-defendant Richard D. Sizemore, Sr. When no answer was filed, appellant secured a default judgment against “Richard D. Size-more.” When appellant sought to enforce this default judgment against appellee, appellee filed a motion to set that default judgment aside as to him. The trial court granted the motion and appellant appeals.

Decided September 13, 1991. Allman & Banner, Denise R. Griffin, for appellant. John B. Blandford, for appellee. Anthony Sizemore, pro se. Richard Sizemore, pro se.

Assuming without deciding that appellant had ever even obtained a default judgment against appellee, the trial court clearly did not err in setting that default judgment aside. The note attached to the complaint shows that appellant’s claim is against “Richard D. Sizemore, Jr.” and that appellant has no claim whatsoever against appellee. See generally Gilham v. Stamm & Co., 117 Ga. App. 846 (162 SE2d 248) (1968).

Judgment affirmed.

Beasley and Cooper, JJ., concur.