Henry v. Adair Realty Co.
| Decision Date | 03 February 1977 |
| Docket Number | No. 2,No. 53181,53181,2 |
| Citation | 233 S.E.2d 39,141 Ga.App. 182 |
| Parties | C. D. HENRY v. ADAIR REALTY COMPANY |
| Court | Georgia Court of Appeals |
Gilbert & Blum, Fred A. Gilbert, Atlanta, for appellant.
Jones, Bird & Howell, Judson Graves, Dow N. Kirkpatrick, II, Atlanta, for appellee.
Plaintiff Adair Realty Co. filed suit against defendant C. D. Henry and another on July 17, 1975, seeking a broker's commission allegedly due under a contract between the parties. An answer for both defendants was filed on September 9, 1975. Upon motion by plaintiff, the trial court struck the defensive pleadings and entered default judgment for plaintiff on April 28, 1976. On July 6, 1976, defendant Henry filed a Motion to Vacate Judgment which was denied by order entered September 2, 1976. From this order defendant Henry appeals.
1. The record in this case shows that defendants' answer was filed on the 46th day following service on defendant Henry of the plaintiff's complaint. The time for filing an answer and opening the default as a matter of right had passed. Code Ann. § 81A-155(a). There was no effort to seek leave of court to open the default as required by Code Ann. § 81A-155(b). Plaintiff was entitled, therefore, to a default judgment ". . . as if every item and paragraph of the petition were supported by proper evidence without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages . . ." Code Ann. § 81A-155(a).
Appellant contends that the damages in this case were unliquidated and that it was, therefore, error to enter a default judgment for a specified amount without hearing evidence from the defendant. Bartee v. Andrews, 18 Ga. 407. Plaintiff's complaint alleged (1) existence of a contract between the parties for broker's commissions of a specified percentage of the purchase price of a particular piece of real estate, (2) that plaintiff performed according to the contract, and (3) the amount paid by defendant for the described property. Since all of these items are deemed established by defendant's failure to timely file his answer or open the default, the exact amount of the commission due is ascertainable by simple mathematical calculation. The damages, therefore, are liquidated and the court did not err in entering the judgment. Keith v. Byram, 118 Ga.App. 364, 163 S.E.2d 753.
2. Under the provisions of Code Ann. § 81A-152, ap...
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...in the amount of 2% of the $10,650,000 purchase price of the real property described in the complaint. See Henry v. Adair Realty Co., 141 Ga.App. 182, 183(1), 233 S.E.2d 39 (1977) (allegations of existence of contract to pay commission, performance, and amount paid by defendant for property......
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... ... results." (Citation and punctuation omitted.) Henry ... v. Adair Realty Co., 141 Ga.App. 182, 183 (1) (233 ... S.E.2d 39) (1977) ... ...
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Pittard Machinery Co. v. Eisele Corp.
...answer or to open the default, the court did not err in treating the damages as liquidated. See generally Henry v. Adair Realty Co., 141 Ga.App. 182(1), 233 S.E.2d 39 (1981); Copelan v. O'Dwyer, 159 Ga.App. 750, 751, 285 S.E.2d 216 The appellant's reliance on the holdings in Maddox v. Wagne......
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Henry v. Polar Rock Development Corp.
.... . . some nonamendable defect which does appear on the face of the record or pleadings.' Code Ann. § 81A-160(d)." Henry v. Adair Realty Co., 141 Ga.App. 182(3), 233 S.E.2d 39. Here it was alleged that the affidavit in support of the motion for summary judgment was fatally defective because......