Betts v. First Georgia Bank

• Decision Date: 04 December 1985
• Docket Number: No. 71444,71444
• Citation: 339 S.E.2d 616,177 Ga.App. 359
• Parties: BETTS v. FIRST GEORGIA BANK.
• Court: Georgia Court of Appeals

Page 616

339 S.E.2d 616

177 Ga.App. 359

BETTS v. FIRST GEORGIA BANK.

No. 71444.

Court of Appeals of Georgia.

Dec. 4, 1985.

Rehearing Denied Dec. 18, 1985.

Certiorari Denied Jan. 9, 1986.

Thomas W. Tucker, Augusta, for appellant.

Herbert D. Shellhouse, Thomas C. Taylor, Atlanta, for appellee.

DEEN, Presiding Judge.

First Georgia Bank filed suit against appellant David E. Betts on May 21, 1985, seeking to recover in three counts on three separate promissory notes in the principal amounts of $150,000, $15,000 and $25,000. The first count of the complaint alleged that "[a]s of February 8, 1985, the total principal due was $150,000.00, combined with interest that had accrued of $3,090.68, and interest continues to accrue at the rate of $65.63 per diem"; a copy of the note showing the principal sum of $150,000 and a maturity date of December 21, 1984, was attached thereto as an exhibit. However, due to a typographical error the demand for judgment requested as relief "[a]s to Count One, $15,000.00 in principal, $3,090.68 in interest that has accrued until February 8, 1985, per diem interest at the rate of $65.63 per day until the date of judgment, and attorney's fees in the sum of fifteen (15%) percent of all principal and interest recovered ..." Betts did not answer or otherwise appear after service of summons and the complaint, and on April 5, 1985, the trial court entered default judgment for the bank on each note, including the full $150,000 principal amount alleged to be owing in Count One of the complaint.

On May 10, 1985, Betts filed a motion to reduce that portion of the judgment pertaining to Count One to conform to the amount prayed for in the demand for judgment in accordance with OCGA § 9-11-54 (c)(1). The bank then filed a motion to set aside its own default judgment as to all three counts pursuant to OCGA § 9-11-60(d) on the ground that a nonamendable defect appeared on the face of the complaint, and to re-enter final judgment in its favor on Counts Two and Three since Betts remained in default and there was no just reason for delay under OCGA § 9-11-54(b) as to those two counts. The trial court reasoned that because OCGA § 9-11-54(c)(1) prohibits a judgment by default from exceeding the amount prayed for in the demand for judgment, the bank could not be awarded the $150,000 principal sought under Count One, rendering the defect nonamendable and the judgment subject to be set aside under OCGA § 9-11-60 (d). Betts appeals the grant of the bank's motion to set aside, contending that because the demand in a complaint is amendable prior to judgment it cannot be made into a nonamendable defect simply because a judgment has been taken.

We agree with appellant that "[w]here the pleadings join issue as to whether the prevailing party is entitled to a recovery in money, the omission [or mis-statement] of a prayer for relief of that nature may be cured by amendment, and hence is not a ground of a motion [to set aside]." Wright v. Fla.-Ga. Tractor Co., 218 Ga. 824 (2), 130 S.E.2d 736 (1963). See OCGA § 9-12-15. It also appears that default judgments may be conformed to the pleadings at subsequent terms of court: "Not only mere clerical errors, but also irregularities in the judgment, if they appear on the face of the record, may be corrected after the expiration of the term; and irregular judgments may be made perfect. [Cits.]" Williams v. Stancil, 119 Ga.App. 800(1), 168 S.E.2d 643 (1969). Further, an amendable defect may be waived by the defendant's failure to object thereto at trial. Harvard v. Walton, 243 Ga. 860 (1), 257 S.E.2d 280 (1979).

The problem here is that the typographical error is in the pleading rather than the judgment, and this defect was apparently intentionally waived by appellant so as to serve in his favor. Had the issue been raised at any time in the first 25 days after entry of the judgment, the trial court had inherent authority on its own motion and without notice to any party to vacate the judgment. Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278 (1979). By going into default, however, appellant was able to take advantage of the limitation imposed by OCGA § 9-11-54(c)(1) on damages that can be awarded by default judgment.

As appellant points out, this court has recognized that the reason for the CPA § 54 (c)(1) rule is that " '[it would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award.' [Cits.]" Orkin Exterminating Co. v. Townsend, 136 Ga.App. 50, 53(2), 220 S.E.2d 14 (1975). But the notes involved here were signed by appellant in his individual capacity, the $150,000 loan only six months prior to service of the lawsuit against him, and it stretches credulity to suggest that he was misled by the bank's demand for judgment to believe that only 10% of the principal sum on which he was indebted was sought to be recovered under Count One. Moreover, by his default appellant "admitted the contractual obligation and that [he] owed [the bank] the sum alleged. This rendered the damages liquidated and as a fact admitted was not a matter...