Opinion
38937.
DECIDED JUNE 19, 1961.
Action on note, etc. DeKalb Civil Court. Before Judge Mitchell.
Carl T. Hudgins, for plaintiffs in error.
Saul Blau, contra.
For reasons stated in the opinion, the trial court did not err in sustaining a motion to vacate a judgment entered in a suit upon a note.
DECIDED JUNE 19, 1961.
On October 2, 1960, J. H. Hudgins filed in the Civil and Criminal Court of DeKalb County a suit on a promissory note against Willie Maude Nelms, as administratrix of the estate of Will Nelms, deceased. It appeared from the petition that on May 16, 1952, Will Nelms executed to J. H. Hudgins a note for $500 which was due June 16, 1952. The note did not specify the rate of interest or from when it was to run. On the reverse side are entries indicating that in September, 1954, a payment of $100 was made, that in October, 1954, the additional sum of $75 was loaned to the maker of the note, and that on May 20, 1955, a payment of $100 was made. Since the date of the first payment and of the additional loan is indicated only by the month and year, we assume that these transactions took place on the first day of the respective months. Plaintiff also sued for attorneys' fees, as provided in the note, but by amendment eliminated his claim therefor.
Defendant answered on November 3, 1960, and plaintiff, on November 8, 1960, demurred to and moved to strike the answer. When defendant did not appear for the call of the demurrer calendar on February 24, 1961, plaintiff's motion to strike the answer was sustained, and judgment was entered for plaintiff in the amount of $475.25, principal, together with $235.63 interest and costs of court.
On February 28, 1961, defendant filed a motion to vacate the judgment, and thereafter plaintiff filed a motion to strike the motion to vacate the judgment. On a hearing of these motions, the trial judge sustained the motion to vacate the judgment and overruled the other. To these orders and judgments plaintiff excepts.
Defendant in error filed a motion to dismiss the bill of exceptions on the ground that there was no final judgment in the trial court from which to appeal. The motion is without merit. If the motion to vacate the judgment had been stricken, as contended for by plaintiff in error, it would have been an end to the matter, and a judgment overruling the motion to strike the motion to vacate is in the same category as the overruling of a general demurrer to a petition.
Since the note did not specify the rate of interest or the date from which it was to run it must be calculated at seven percent per annum from maturity. Applying this rule and giving full effect to plaintiff's contention that the payments were to be applied against interest first, then to principal, and that the additional loan was to increase the principal of the note as of the date it was made, it is apparent from the face of the petition and the exhibit attached that the balance due on February 24, 1961, when judgment was entered, would amount to $481.11 principal, besides $197.11 interest. It does not appear that plaintiff wrote off or offered to write off the excess amount. While plaintiff might, if he chose, waive or reduce the amount of principal claimed, he could not claim interest beyond that which he is entitled to have by law, and any judgment entered for an excessive amount, remaining in the breast of the court during the term at which it was rendered, not only could, but ought to have been vacated as was done here.
Nor was there any abuse of discretion in vacating the order striking defendant's answer and plea of non est factum and permitting an amendment so as to bring it in compliance with the provisions of Code §§ 20-801, 24-3373 and 81-405.
Judgment affirmed. Carlisle, P. J., and Nichols, J., concur.