Opinion
37702.
DECIDED SEPTEMBER 9, 1959.
Motion to set aside judgment. Fulton Civil Court. Before Judge Camp. April 3, 1959.
Crespi Milam, for plaintiff in error.
James A. Glenn, Jr., Leon S. Epstein, contra.
The opinion is so short that headnotes would serve no useful purpose and are hence omitted.
DECIDED SEPTEMBER 9, 1959.
Piel Paint Company, Inc., filed suit against Lawson B. Owen in the Civil Court of Fulton County on open account, and a default judgment was taken in the amount of $2,548.16. The defendant filed a motion to set aside and vacate the judgment. The motion alleged that the petition in Piel Paint Company's suit against Owen set forth that the defendant was a resident of Fulton County; that the defendant was indebted to the plaintiff in the named sum for material and machines furnished him; the amount sued for included the costs of material for work done on several jobs designated by Fulton and DeKalb County addresses, the cost of the material furnished for each job being separately set forth; a bill of particulars would be added to the petition by amendment; the debt was just, due, true, and unpaid. The motion further alleged that the cause was returned to the December term of the aforementioned court; the movant filed no answer, and the default judgment was entered. The movant alleged that the judgment was void because, upon receiving a copy of the petition and process, the defendant contacted the plaintiff's lawyer, and complained that the suit had been filed and of the amount claimed in the petition; at that time prior to the return day of the case, he was assured by the plaintiff's lawyer orally that the matter would be adjusted; that he was thereby led to believe no answer was necessary and, relying upon the assurance given him by the attorney, did not employ counsel to file a defense; he thereafter learned that the judgment had been obtained when his property was levied upon; he was not indebted to the plaintiff as alleged in the petition; and that he has a good defense and would have filed the same "except for the misunderstanding" before alleged.
The judgment attacked was alleged to read: "This case coming on regularly to be heard, and no defense having been interposed as provided by law, and the plaintiff appearing to be entitled to recover of the defendant, judgment is rendered in favor of the plaintiff and against the defendant in the following sums:
Principal $2,548.16 together with future interest and $ _____ costs of this action as are by law provided. Date 12-2-58 A. L. Henson, Judge Civil Court of Fulton County." The motion further alleged that the judgment was invalid, illegal, and contrary to law for the additional reasons: "(a) The petition above set out shows on its face that the plaintiff is not affirmatively entitled to judgment because no dates are set out showing the plaintiff entitled to recover; (b) That the bill of particulars referred to in paragraph 2 of the above petition was not filed by the plaintiff; (c) That the above judgment is illegal, void, and should be set aside and vacated because no bill of particulars or itemized statement of account was attached as required by Code Section 81-105, and no dates were alleged showing when the services began or when they were rendered or what price was to be paid for any particular service or material or how much time was consumed in rendering the service. That accordingly the account was defectively set forth and insufficient to warrant the taking of a judgment in the said case; (d) The judgment in the above case is illegal and void and should be set aside and vacated for the further reason that it appears affirmatively that it was a default judgment without any evidence being heard in the case although the said case sounded as an action on account, without any bill of particulars, and without any evidence to support the same."In the brief of evidence appears a colloquy between the trial judge, who was not the judge who entered the default judgment, and counsel: Mr. Crespi, counsel for movant: "I wonder, first, if counsel will agree or stipulate that the signature of the Judge is one affixed by the machine method and that it is an I.B.M. judgment taken?" The Court: "I think this. We can stipulate or I will take judicial notice this is default judgment taken on a machine, but each one of these judges has a rubber stamp, and they come out here to the Clerk. I have got one. Mr. Barfield has one. I don't personally stamp them. They sent part to Judge Parker, Judge Henson, divide them up all around the court." Mr. Epstein, respondent's counsel: "Are they stamped under your supervision?" The Court: "Yes, sir."
1. While the petition avers that it is brought to set aside the judgment, so that defensive pleadings might be filed, it set forth no "providential cause preventing the filing of a plea or for excusable neglect" or facts showing a proper case had been alleged for opening the default and setting aside the judgment as provided by Code (Ann.) § 110-404.
2. The evidence was in sharp conflict as to whether the plaintiff's counsel assured the movant that the suit on account would not be brought to trial. It follows that the issue was one of fact for the determination by the judge to whom it was submitted. This court has no authority to set aside a verdict or judgment where there is some evidence to support it.
3. There is no merit in the movant's contention that the judgment should be set aside because no bill of particulars was attached to the petition, upon which the judgment was rendered. The failure to attach a bill of particulars to a suit on an account is amendable defect cured by verdict, or where the case is in default, by judgment. Holmes v. Reville, 27 Ga. App. 552 ( 109 S.E. 417); Hill v. Harris, 11 Ga. App. 358 ( 75 S.E. 518).
4. The movant, plaintiff in error here, complains that the judgment was not personally signed by the trial judge, and that his signature was not affixed to the same in accord with the rules of the Civil Court of Fulton County. This contention is not presented in the motion to set the judgment aside, nor was it substantiated by evidence. While the evidence disclosed that the judgment was signed by a stamp upon which was the facsimile of the trial judge's signature, there was no proof that the judge did not stamp his name on the judgment or direct that it be done by some other person in his immediate presence. Hence, the point fails for a lack of pleading to present it and evidence to sustain it. It might be observed that the presumption in favor of the validity of judgments is applicable. Code § 38-114.
5. Where in a suit on open account the items are mere charges and subject to future adjustment, the amount sued for is unliquidated. Wallis v. McMurray, 91 Ga. App. 549 ( 86 S.E.2d 529); Nisbet v. Lawson, 1 Ga. 275, 287; Anderson v. State, 2 Ga. 370 (4); Roberts v. Prior, 20 Ga. 561. Hence a default judgment can not be entered for the amounts sued for without proof of the account being adduced, but in cases like the instant case, where the suit is for a stated balance, no evidence is required to obtain a default judgment. Davies v. Turner, 61 Ga. App. 531, 536 ( 6 S.E.2d 356); Grogan v. Herrington, 79 Ga. App. 505, 507 ( 54 S.E.2d 284); Norman Harrell v. Great Western Tailoring Co., 121 Ga. 813 ( 49 S.E. 782); Peeples v. Sethness Co., 119 Ga. 777 ( 47 S.E. 170). The rule in Davies v. Turner, (supra, p. 536) is applicable: "However, in a suit on account for the balance due, when there has been no plea or other defense filed by the defendant, and no appearance by him, and the case has been marked in default under our statutes, the defendant will be taken to have admitted each and every allegation of the plaintiff's petition, including the allegation as to the balance due, and the plaintiff may take a judgment without the introduction of any proof."
Judgment affirmed. Felton, C. J., and Nichols, J., concur.