Orkin Exterminating Co. v. Townsend
| Citation | 136 Ga.App. 50,220 S.E.2d 14 |
| Decision Date | 03 September 1975 |
| Docket Number | No. 2,No. 50735,50735,2 |
| Parties | ORKIN EXTERMINATING COMPANY v. W. L. TOWNSEND et al |
| Court | United States Court of Appeals (Georgia) |
Kaler, Karesh & Frankel, Irving K. Kaler, Jerry L. Sims, David I, Funk, Atlanta, for appellant.
Hurt, Richardson, Garner & Todd, W. Seaborn Jones, Paul M. Talmadge, Jr., Wilkinson, Nance & Wittner, A. Mims Wilkinson, Jr., Greene, Buckley, DeRieux & Jones, John D. Jones, Atlanta, for appellees.
Via certificate of immediate review, plaintiff appeals from the grant of co-defendant Knox A. Griffin's motion to set aside judgment rendered in favor of plaintiff Orkin Exterminating Company.
Plaintiff brought suit against Wendell L. Townsend, doing business as Townsend Roofing Company, and Continental Casualty Company, Townsend's bondsman, alleging defendants were liable for the defective installation of a roof upon an annex to plaintiff's building. Thereafter, plaintiff amended its complaint to add Knox A. Griffin, an architect, as a party defendant, alleging Griffin was also liable for having faultily designed the roof. This appeal is concerned only with the subsequent history of plaintiff's suit with regard to defendant Griffin.
Following service of the amended complaint, Griffin failed to answer and his case became in default. On the day of the trial limited to the issue of damages, plaintiff amended its complaint to increase the demand for judgment from $19,750.00 to $23,500.00. Upon the trial's conclusion, the jury rendered a verdict for the increased amount. Determining that there was no just reason for delay, the trial court directed the entry of judgment against defendant Griffin only in accordance with the jury's verdict.
More than one year later, Griffin made a motion to set aside the judgment. This attack came after defendant Townsend moved for summary judgment in the case remaining for trial. There, in opposition to Townsend's motion, plaintiff submitted two affidavits which bear upon the case sub judice. By way of the first affidavit, plaintiff exhibited its correspondence with regard to the 'roof' litigation. In one such letter, written long after the roof was completed and the defects were discovered, plaintiff's insurance director wrote that 'the building is well designed and is in sound condition.' In the second affidavit, plaintiff's maintenance supervisor averred that the 'roofing problems were the result of the improper performance of the roofing contractor (Townsend) which included poor workmanship, improper application of the roofing materials and the use of defective materials.'
The trial court concluded that (1) it would be 'unconscionable to allow plaintiff to recover damages from defendant Knox A. Griffin for alleged faulty roof design when plaintiff, by its own affidavits in opposition to another defendant's motion for summary judgment, shows that the roof was not faultily designed' and (2) 'plaintiff's action in amending its complaint to increase the amount sought from defendant Knox A. Griffin on the same date that plaintiff took a default judgment against defendant Griffin' was unlawful. Consequently, the trial court granted Griffin's motion to set aside. Held:
1. A motion to set aside must be predicated upon a nonamendable defect which affirmatively appears on the face of the pleadings or record. Code Ann. § 81A-160(d); Paine v. Board of Tax Assessors, 124 Ga.App. 233, 183 S.E.2d 474; Goldberg v. Painter, 128 Ga.App. 214, 196 S.E.2d 157. Defendant contends a nonamendable defect appears on the face of the record sub judice since plaintiff's affidavits contradict the allegations of the complaint. In support of his contention, defendant cites the case of Gilham v. Stamm & Co., 117 Ga.App. 846, 162 S.E.2d 248.
In Gilham, a default judgment in a suit on account was rendered against an individual defendant who had been sued jointly with a corporate defendant. The account sued upon, attached to the complaint as an exhibit, showed that the items and services were sold and delivered to the corporate defendant only. Since the exhibit contradicted the general allegations of the petition, and since an exhibit attached to a complaint controls over its general allegations, the court was presented with a nonamendable defect on the face of the pleadings. Accordingly, as to the individual defendant, a motion to set aside was in order.
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