Midland Guardian Co. v. Varnadore
| Decision Date | 23 January 1979 |
| Docket Number | No. 56744,56744 |
| Citation | 252 S.E.2d 685,148 Ga.App. 742 |
| Parties | MIDLAND GUARDIAN COMPANY v. VARNADORE et al. |
| Court | Georgia Court of Appeals |
R. John Genins, Atlanta, for appellant.
Schreiber, Rozier & Thomas, C. Edwin Rozier, W. Vincent Settle, III, Waycross, for appellees.
Appellant brought suit in Georgia on a promissory note payable in Ohio and secured a default judgment against appellees, the makers of the note. Appellees subsequently filed a motion to set aside the judgment, alleging that the record shows that the judgment was based upon a note containing an acceleration clause violative of the Industrial Loan Act. The trial court agreed, granted the motion, and dismissed the suit. This appeal is from the grant of that motion. For the reasons set out below, we reverse the judgment.
1. The trial court's order was based on a determination that the note was governed by the provisions of the Industrial Loan Act. That determination was incorrect.
The note involved in this case was, by its express terms, payable in Ohio and incorporated by reference the Ohio statute under which the loan was made. It is apparent on the face of the note that the parties intended to be governed by the laws of that state. See Code Ann. § 57-106. Because Ohio law was applicable (see, e. g., Fitzgerald v. United Va. Bank, 139 Ga.App. 664, 229 S.E.2d 138), the judgment granting the motion to set aside on the grounds that the note contained an acceleration clause violative of the Industrial Loan Act was erroneous.
2. To set aside a judgment under Code Ann. § 81A-160(d), the movant must show that the motion is "predicated upon some nonamendable defect which does appear upon the face of the record or pleadings," and that "the pleadings . . . affirmatively show that no claim in fact existed." Cullers v. Home Credit Co., 130 Ga.App. 441(5), 203 S.E.2d 544.
There is nothing in the record of this case to show that the note is in any way violative of Ohio law. The failure to plead that law does not constitute a nonamendable defect which is not cured by the judgment. See generally Rooney v. Southern Building, etc., Assn., 119 Ga. 941(7),47 S.E. 345. Nor is the presence of the acceleration clause in the note a nonamendable defect. Absent a statute forbidding it, the clause itself is not so repugnant to the laws and public policy of this state that the note will not be enforced in our courts. See, e. g., Bell v. Loosier, 140...
To continue reading
Request your trial
-
Commercial Credit Plan, Inc. v. Parker, 58403
...to the treatment of money contracts which would, if made in Georgia, fall under the provisions of the ILA. See Midland Guardian Co. v. Varnadore, 148 Ga.App. 742, 252 S.E.2d 685; Clark v. Transouth Financial Corp., 142 Ga.App. 389, 390, 236 S.E.2d 135; Liberty Loan Corp. v. Crowder, 116 Ga.......
-
Emery Enterprises, Inc. v. Automatic Fastners Division, Allied Products Corp.
...or pleadings, or upon lack of jurisdiction." King v. King, 242 Ga. 770, 772, 251 S.E.2d 516, 517 (1979); Midland Guardian Co. v. Varnadore, 148 Ga.App. 742, 252 S.E.2d 685 (1979). Furthermore, "(t)he motion will not be granted where matters upon which it is predicated must be developed by e......
- Shaver v. Aetna Finance Co., 56710
-
Hyman v. Plant Imp. Co., Inc.
...record or pleadings,' and that 'the pleadings . . . affirmatively show that no claim in fact existed.' (Cit.)" Midland Guardian Co. v. Varnadore, 148 Ga.App. 742, 252 S.E.2d 685. There is nothing in the record of this case to show that the liquidated damages provision of the rental contract......