Dempsey v. Ellington
| Decision Date | 23 February 1972 |
| Docket Number | No. 46890,No. 3,46890,3 |
| Citation | 188 S.E.2d 908,125 Ga.App. 707 |
| Parties | D. B. DEMPSEY et al. v. V. C. ELLINGTON, Jr |
| Court | Georgia Court of Appeals |
A. R. Barksdale, Conyers, for appellants.
Hoyt L. Bradford, Conyers, for appellee.
Syllabus Opinion by the Court
Defendant-appellants are the administrators of an estate which owns certain real property. The land was sold to the other defendants in this action. The lessee at the time of the sale is the plaintiff here. Following some litigation between the administrators and the lessee only, the parties agreed to a consent judgment under which the lease was cancelled and the administrators agreed to transfer and convey to the plaintiff the cotton allotment (and right to receive payments) for the next five years.
The administrators signed the transfer form provided by the government but the buyers refused to consent to it and filed suit to enjoin the transfer. (That suit was determined adversely to the buyers who still refuse their consent). The government has also refused to make the transfer pending clarification of the legal claims. The plaintiff brought this action against the buyers and the administrators, alleging the facts outlined above and alleging that the allotment has a cash value of $5,000. The prayer for relief contained these relevant demands: 'That the defendants named in this complaint be ordered by the court to perform every act necessary to accomplish the provisions of the consent judgment'; 'For relief in the alternative . . . to set aside said order and restore the lease' (this prayer was later struck by amendment); and 'For such other and further relief as to the court appears necessary to do complete justice between the parties'.
The buyers answered and contested jurisdiction. The administrators did not appear at all. The case was placed on the default calendar and neither set of defendants was present when the case was tried. A jury returned a verdict for plaintiff for $5,000.
1. Plaintiff's motion to dismiss the appeal is denied. The appellants may elect to attack the judgment in the court below or to appeal directly. Code Ann. § 6-702.
2. The administrators appeal from the default judgment, contending that the grant of money damages is different in kind from the relief demanded in the complaint and is therefore error. Code Ann. § 81A-154(c) states, 'A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.' Plaintiff contends that the general prayer ('for such other and further relief, etc.'), combined with the allegation of cash value, was sufficient to authorize the judgment for money damages.
We can find no Georgia case construing the 'different in kind' test in a default judgment. However, the rule in other jurisdictions seems to require greater specificity than the pleadings here. 'Plaintiff's relief in a judgment by...
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Floyd v. First Union Nat. Bank of Georgia
...in the case and from the pleadings in both Harbor Light Marina, supra, and West v. Nodvin, supra. In particular, in Dempsey v. Ellington, 125 Ga.App. 707, 708, 188 S.E.2d 908, the pleading in addition to requesting the court to compel the buyer's performance merely contained a general praye......
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Jones v. St. Paul Travelers
...788, 790, 417 S.E.2d 725 (1992); Orkin Exterminating Co. v. Townsend, 136 Ga.App. 50, 52, 220 S.E.2d 14 (1975); Dempsey v. Ellington, 125 Ga.App. 707, 708, 188 S.E.2d 908 (1972). The statute does not, however, mandate that a specific amount of damages be alleged in order for a court to awar......
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Stamps v. Nelson
...additional, or greater relief, as under a prayer for general relief." (Citations and punctuation omitted.) Dempsey v. Ellington, 125 Ga. App. 707, 708(2), 188 S.E.2d 908 (1972). "A trial court may not award relief beyond that sought in the complaint when the defendant does not file defensiv......
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Jayson v. Gardocki, A96A0405
...or both, would justify, other, additional, or greater relief, as under a prayer for general relief.' [Cits.]" Dempsey v. Ellington, 125 Ga.App. 707, 708(2), 188 S.E.2d 908. "To the extent that a judgment by default exceeds the amount prayed for, it is a nullity. Orkin Exterminating Co. v. T......