Summary
In Holloway v. McCarthy, 151 Ga.App. 828, 261 S.E.2d 732 (1979), this Court held that the denial of a defendant's first motion to set aside a default judgment did not bar the defendant's second motion to set aside because the motions attacked the judgment on different grounds.
Summary of this case from Vasile v. AddoOpinion
58203.
SUBMITTED JULY 3, 1979.
DECIDED OCTOBER 5, 1979. REHEARING DENIED OCTOBER 19, 1979.
Action on indebtedness. Richmond Superior Court. Before Judge Fleming.
Vernon J. Neely, for appellant.
Jay M. Sawilowsky, for appellee.
Default judgment was entered against appellant in an action seeking recovery of a sum certain, plus attorney fees pursuant to Code Ann. § 20-1404. After the Civil Court of Richmond County denied appellant's motion pursuant to Code Ann. § 81A-160 (c) for "new trial or in the alternative motion to set aside" the default judgment, and without appealing the denial of that motion, appellant filed a complaint in equity in superior court, seeking to set aside the default judgment pursuant to Code Ann. § 81A-160 (e). This appeal follows the grant of appellee's and the denial of appellant's respective motions for summary judgment. We reverse the judgment in favor of appellee McCarthy with the direction that summary judgment be entered in favor of appellant Holloway insofar as attorney fees are concerned.
1. In granting the motion for summary judgment, the court sustained appellee's contention that appellant's complaint in equity was barred by the doctrine of res judicata. We agree with appellant's contention that summary judgment could not be properly granted on that basis.
While appellant's motion to set aside the judgment on equitable principles improperly attempted to raise issues previously addressed in his first motion (see in this regard Eison v. Coker, 45 Ga. App. 122 ( 163 S.E. 511)), the equitable complaint also asserted additional grounds which were not included in the prior motion, to wit: that the portion of the judgment awarding attorney fees pursuant to Code Ann. § 20-1404 was void because it was rendered without the verdict of a jury.
Because appellant's second motion to set aside the default attacked the judgment as being void and the original motion did not attack the judgment on that basis, the "prior ruling of the trial judge against the defendant's motion to set aside the judgment, from which ruling no appeal was made, was not res judicata." Greene v. Greene, 76 Ga. App. 225 (a) ( 45 S.E.2d 713).
2. Appellant, submitting that the judgment was void as being rendered without a jury verdict, asserts that he was entitled to prevail on the merits of his motion. We agree.
"The trial court was without jurisdiction to render the judgment without the verdict of a jury, the action being for unliquidated damages [cf., e.g., Young v. John Deere Plow Co., 102 Ga. App. 132 (2b) ( 115 S.E.2d 770)], and such judgment was void." Greene, supra, p. 228. See also Canal Ins. Co. v. Cambron, 240 Ga. 708 (3) ( 242 S.E.2d 32). This being so, the trial court erred in refusing to set aside that portion of the judgment awarding attorney fees.
Judgment reversed with direction that summary judgment be entered in favor of appellant Holloway insofar as attorney fees are concerned. Deen, C. J., and Carley, J., concur.