Opinion
40941.
DECIDED SEPTEMBER 21, 1964.
Motion to arrest judgment. Appling Superior Court. Before Judge Flexer.
Sumner Boatright, J. Laddie Boatright, for plaintiff in error.
Bennet, Gilbert, Gilbert Whittle, Wallace E. Harrell, Adams, Adams Brennan, contra.
The trial court did not err in overruling the motion to arrest the judgment rendered against the defendant.
DECIDED SEPTEMBER 21, 1964.
The Citizens Southern National Bank sued W. H. Cravey, Sr. on a note. The defendant failed to answer within the time permitted by law and on August 9, 1963, the court entered a default judgment for the principal amount of the note. No attorneys fees, or interest from the maturity of the note, was sought by the plaintiff. On October 15, 1963, the defendant filed a motion in arrest of judgment on the following grounds:
"1. It appears from the record in said case that no cause of action is stated in plaintiff's petition, and the judgment by default rendered therein should be arrested, vacated and set aside. 2. The record in said case shows the following defects: (a) The title to the promissory note attached as an exhibit is not in the plaintiff, but is in Bacon Farm Equipment Company, Inc., the payee named therein. (b) The allegations and the attached exhibits show on the face thereof that the title to the instrument sued upon is not in the plaintiff. (c) Payments numbered 2 and 3 were not due. (d) The instrument sued upon shows no due date. (e) The defendant shows that the above-stated case automatically became in default on the 10th day of July, 1963, because of the failure of this defendant to file defense pleadings as required by law, and defendant further avers and shows that he herewith tenders the sum of $ ____ for the accrued cost in said case, and shows that the judge of this court should exercise his discretion and allow said default to be opened because the defendant was prevented from making said defense thereto for excusable neglect and other reasons allowed by law in that defendant was mistaken as a matter of law and of fact as to the time, way, manner, and method of defending such actions, and believed that he could be and appear in court at the trial term of said court to commence October 21, 1963, which would be and is the regular term thereof; and, defendant shows further that he has a good defense thereto, that he has returned the property sued for, that he does not owe the plaintiff, and he is now ready to proceed with the trial of said case, and the judgment rendered by default should be arrested, vacated and set aside and the default opened. (f) The claim for attorney's fees, as to due dates, and other matters therein contained was not liquidated and require a trial by jury. (g) Because the judgment is without evidence to support it. (h) Because the judgment is contrary to law and the principles of justice and equity. (i) Because the judgment is contrary to law and is defective for the reasons appearing in the face of the record as herein set forth." The trial court issued the rule nisi, and on May 1, 1964, after hearing argument overruled the defendant's motion in arrest of judgment. It is on such adverse judgment that the defendant now assigns error.
1. "`When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings.' Code § 110-702. `If the pleadings are so defective that no legal judgment can be rendered thereon, the judgment will be arrested or set aside.' § 110-704. `A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form.' § 110-705. Under the rule last stated, a petition, although defective and although subject to general demurrer, in that it omits to set forth all the necessary ingredients of a cause of action, will not render the judgment based thereon subject to be set aside on a motion made for that purpose, unless it be that the petition shows on its face, not only that no cause of action is set forth, but that a cause of action did not in fact exist. Merritt v. Bagwell, 70 Ga. 578 (3), 595; Stanford v. Bradford, 45 Ga. 97, 98; Fitzpatrick v. Paulding, 131 Ga. 693 ( 63 S.E. 213); Weems v. Kidd, 37 Ga. App. 8 (2, 3) ( 138 S.E. 863); Chapman v. Taliaferro, 1 Ga. App. 235, 238 ( 58 S.E. 128); So. R. Co. v. Morrison, 8 Ga. App. 647, 648 ( 70 S.E. 91); Rollins v. Personal Finance Co., 49 Ga. App. 365, 366 ( 175 S.E. 609), and cit." Burch v. Dodge County, 193 Ga. 890 (1) ( 20 S.E.2d 428). See also Mell v. McNulty, 185 Ga. 343, 344 (1) ( 195 S.E. 181); Whitley v. Currington, 105 Ga. App. 681 ( 125 S.E.2d 678). Accordingly, the contentions made in grounds 1, 2 (a), (b), (c) and (d) of the motion in arrest, each being an amendable defect, if a defect, does not require a reversal of the judgment overruling the motion to arrest the judgment, and it is nowhere shown that "no cause of action existed."
2. "`When a party has been afforded an opportunity to be heard, the court can not suspend or vacate its judgment merely to let in a defense which should have been offered before the judgment was entered.' Hurt Building, Inc. v. Atlanta Trust Co., 181 Ga. 274, 283 ( 182 S.E. 187)." Walthour v. Mock, 102 Ga. App. 811 ( 117 S.E.2d 885). The contentions made in paragraph 2 (e) of the defendant's motion to arrest the judgment show only defenses that should have been made before the judgment was rendered, and the defendant was not prevented from making any such defense by coercion or duress, amounting to fraud. See Young v. Young, 188 Ga. 29, 35 ( 2 S.E.2d 622); Kite v. Lumpkin, 40 Ga. 506; and Burger v. Dobbs, 87 Ga. App. 88, 92 ( 73 S.E.2d 75), where it was held: "When the defendant was duly served, the legal responsibility was on him to keep up with the case, at every stage, if he desired to defend and contest it. According to the record, he was afforded full opportunity to defend, but he failed to appear and plead. Treating the motion as one to vacate and set aside the judgment filed at the same term of court when rendered, it was addressed to the sound legal discretion of the court, and no legal reason being shown by the motion as to why the judgment should be set aside, the judgment of the trial judge sustaining the plaintiff's demurrer to the defendant's motion was not an abuse of his discretion and will not here be disturbed."
3. The defendant contends in ground 2 (f) of his motion seeking to arrest the judgment that the attorney's fees, due dates, etc., were not liquidated and required a jury trial. No attorney's fees were sought or recovered by the plaintiff, and the allegations of the petition, supported by the exhibits attached thereto, showed the note to be due. See as to allegations of this type made in a petition and not denied, Moore v. Trailmobile, Inc., 94 Ga. App. 892 ( 96 S.E.2d 529), and Young v. John Deere Plow Co., 102 Ga. App. 132, 136 ( 115 S.E.2d 770).
The trial court did not err in overruling this ground of the motion seeking to arrest the judgment. The remaining grounds are either not proper grounds for a motion to arrest a judgment or are no more than a conclusion unsupported by the facts pleaded. While the defendant cites cases which deal with Code Ann. § 110-404, the present case involves a situation where a case not only has gone into default but where a final judgment has been rendered adverse to the movant. Accordingly, such Code section and the cases construing and applying the same are not applicable to the case sub judice.
The judgment overruling the defendant's motion to arrest the default judgment was not error for any reason assigned.
Judgment affirmed. Hall and Russell, JJ., concur.