Service Loan & Finance Corp. v. McDaniel, 42729
| Decision Date | 10 April 1967 |
| Docket Number | No. 42729,No. 1,42729,1 |
| Citation | 115 Ga.App. 548,154 S.E.2d 823 |
| Parties | SERVICE LOAN & FINANCE CORPORATION v. Judy McDANIEL |
| Court | Georgia Court of Appeals |
J. E. Wilson, Hapeville, for appellant.
Lipshutz, Macey, Zusmann & Sikes, Larry S. Bryant, J. Timothy White, Atlanta, for appellee.
Syllabus Opinion by the Court
Plaintiff appeals from the sustaining of a general demurrer to a petition seeking recovery of the principal, interest, insurance charges, service charges and attorney's fees alleged to be due under a combination promissory note and bill of sale to secure debt. There is no reference to the Industrial Loan Act (Code Ann. Ch. 25-3) in the petition or the photostatic copy of the note and bill of sale attached as an exhibit, nor is there any allegation that plaintiff was licensed to do business under the Act when the loan was made.
1. It is settled that one who seeks to recover money loaned under provisions of the Industrial Loan Act must plead and prove that he was licensed to do business under the Act at the time the loan was made. Robinson v. Colonial Discount Co., 106 Ga.App. 274(3), 126 S.E.2d 824; Bayne v. Sun Finance Co., 114 Ga.App. 27(2), 150 S.E.2d 311. Failure to plead the fact of licensing is, however, an amendable defect.
2. The trial judge has certified to us that when the general demurrer was sustained plaintiff's attorney requested time in which to amend by adding an allegation that plaintiff was duly licensed under the Act at the time of making the loan, but the court declined to grant an opportunity to amend, holding that the defect was not an amendable one. Since we disagree as to that we must conclude that it was error to deny plaintiff the requested opportunity to amend. Tinsley v. Maddox, 176 Ga. 471, 488, 168 S.E. 297; Higgins v. Otis Elevator Co., 69 Ga.App. 584, 589(2), 26 S.E.2d 380.
A different result would be reached if there had been no request for an opportunity to amend. Ripley v. Eady & Mayfield, 106 Ga. 422, 423(2), 32 S.E. 343; Compton v. Weekes, 107 Ga.App. 283(2), 129 S.E.2d 824; Wold v. Northcutt, 107 Ga.App. 365(2), 130 S.E.2d 257. Cf. Freeman v. Brown, 115 Ga. 23(1), 41 S.E. 385. Since it does not appear that there was any request for opportunity to amend or any offer to amend by supplying the essential allegation in Rives v. Atlanta Newspapers, Inc., 220 Ga. 485, 139 S.E.2d 395, the holding in that case does not require a different conclusion. Of course the request or offer must be accompanied by a statement informing the court as to what amendment one expects to tender (Thomas v. Chattanooga Ry. & Light Co., 21 Ga.App. 172, 94 S.E. 50), but that requirement was met here. What we now hold is in keeping with the broad right to amend under our practice.
3. The schedule of interest, fees, insurance...
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