Cravey v. Citizens and Southern Nat. Bank, 40941

• Decision Date: 21 September 1964
• Docket Number: No. 2,No. 40941,40941,2
• Citation: 110 Ga.App. 284,138 S.E.2d 321
• Parties: W. H. CRAVEY, Sr. v. CITIZENS & SOUTHERN NATIONAL BANK
• Court: Georgia Court of Appeals

Page 321

138 S.E.2d 321

110 Ga.App. 284

W. H. CRAVEY, Sr. v. CITIZENS & SOUTHERN NATIONAL BANK.

No. 40941.

Court of Appeals of Georgia, Division No. 2.

Sept. 21, 1964.

Syllabus by the Court

The trial court did not err in overruling the motion to arrest the judgment rendered against the defendant.

The Citizens & Southern National Bank sued W. H. Cravey, Sr. on a note. The defendant failed to answer within the time permitted by law and on August 9, 1963, the court entered a default judgment for the principal amount of the note. No attorney's fees, or interest from the maturity of the note, was sought by the plaintiff. On October 15, 1963 the defendant filed a motion in arrest of judgment on the following grounds: '1. It appears from the record in said case that no cause of action is stated in plaintiff's petition, and the judgment by default rendered therein should be arrested, vacated and set aside. 2. The record in said case shows the following defects: (a) The title to the promissory note attached as an exhibit is not in the plaintiff, but is in Bacon Farm Equipment Company, Inc., the payee named therein. (b) The allegations and the attached exhibits show on the face thereof that the title to the instrument sued upon is not in the plaintiff. (c) Payments numbered 2 and 3 were not due. (d) The instrument sued upon shows no due date. (e) The defendant shows that the above-stated case automatically became in default on the 10th day of July, 1963, because of the failure of this defendant to file defense pleadings as required by law, and defendant further avers and shows that he herewith tenders the sum of $_____ for the accrued cost in said case, and shows that the judge of this court should exercise his discretion and allow said default to be opened because the defendant was prevented from making said defense thereto for excusable neglect and other reasons allowed by law in that defendant was mistaken as a matter of law and of fact as to the time, way, manner, and method of defending such actions, and believed that he could be and appear in court at the trial term of said court to commence October 21, 1963, which would be and is the regular term thereof; and, defendant shows further that he has a good defense thereto, that he has returned the property sued for, that he does not owe the plaintiff, and he is now ready to proceed with the trial of said case, and the judgment rendered by default should be arrested, vacated and set aside and the default opened. (f) The claim for attorney's fees, as to due dates, and other matters therein contained was not liquidated and require a trial by jury. (g) Because the judgment is without evidence to support it. (h) Because the judgment is contrary to law and the principles of justice and equity. (i) Because the judgment is contrary to law and is defective for the reasons appearing in the face of the record as herein set forth.' The trial court issued the rule nisi, and on May 1, 1964, after hearing argument overruled the defendant's motion in arrest of judgment. It is on such adverse judgment that the defendant now assigns error.

Sumner & Boatright, J. Laddie Boat-right, Douglas, for plaintiff in error.

Bennet, Gilbert, Gilbert & Whittle, Wallace E. Harrell, Brunswick, Adams, Adams & Brennan, Savannah, for defendant in error.

NICHOLS, Presiding Judge.

1. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.' Code, § 110-702. 'If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside.' § 110-704, 'A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form.' § 110-705. Under the rule last stated, a petition, although defective and although subject to general demurrer, in that it omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to be set aside on a motion made for that purpose, unless it be that the petition shows on its face, not only that no cause of action is set forth, but that a cause of action did not in fact exist. Merritt v. Bagwell, 70 Ga. 578(3), 585; Stanford v. Bradford, 45 Ga. 97, 98, 99; Fitzpatrick v. Paulding, 131 Ga. 693, 63 S.E. 213; Weems v. Kidd, 37 Ga.App. 8(2, 3), 138 S.E. 863; Chapman v. Taliaferro, 1 Ga.App. 235, 238, 58 S.E. 128; Southern Ry. Co. v. Morrison, 8 Ga.App. 647, 648, 70 S.E. 91; Rollins v. Personal Finance Co., 49 Ga.App. 365, 366, 175 S.E. 609, and cit.' Burch v. Dodge County, 193 Ga. 890(1), 20 S.E.2d 428. See also Mell v. McNulty, 185 Ga. 343, 344(1), 195 S.E. 181; Whitley v. Currington, 105 Ga.App. 681, 125 S.E.2d 678. Accordingly, the contentions made in grounds 1, 2...