Wallace v. Aetna Finance Company

224 S.E.2d 517, 137 Ga. App. 580, 1976 Ga. App. LEXIS 2536

• Court: Court of Appeals of Georgia
• Decided: February 12, 1976
• Docket: 51770
• Status: Published

Opinion

Webb, Judge.

Pursuant to Code Ch. 67-7, Aetna Finance Company, through its attorney, filed an affidavit to foreclose a security interest in personal property. William Wallace, the debtor, failed to answer or appear at the hearing, and Aetna made application for a default judgment for the balance due "as provided by Code, Title 67-704.” The trial court rendered judgment accordingly, and Wallace appeals from the denial of his motion to set aside, made pursuant to CPA § 60 (d) (Code Ann. § 81A-160 (d)), the money judgment rendered by default. Held:

Submitted February 4, 1976 Decided February 12, 1976. Joseph H. King, Jr., for appellant.

We reverse. Code § 67-704 provides: "If the defendant fails to answer, the court shall grant a writ of possession and, if otherwise permitted by this Chapter, the plaintiff shall be entitled to a verdict and judgment by default for all of the amount due, together with costs, in open court or chambers, as if every item and paragraph of the affidavit provided for in section 67-702 were supported by proper evidence without the intervention of a jury.” (Emphasis supplied.) This section allows a money judgment by default only "if otherwise permitted by this Chapter”; and since there is no provision elsewhere in the chapter which would permit such a judgment, 1 it may not be entered. Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 (1); Edwards, "Chapter 67-7 and Personal Property Foreclosures,” 11 Ga. S. B. J. 230.

Judgment reversed.

Deen, P. J., and Quillian, J., concur.

1 Except, subsequent to July 1, 1975, in commercial transactions. Code § 67-717, not applicable here.