Hardeman v. Roberts , 214 Ga. App. 484 ( 1994 )

Blackburn, Judge.

Plaintiffs appeal the trial court’s order which granted the defendant’s motion to set aside the judgment. The underlying personal injury action arose out of a motor vehicle collision between the parties on December 15, 1990. On June 30, 1992, plaintiffs filed the present action. The defendant was personally served on July 2, 1992, and the defendant’s insurance carrier, Safeway Insurance Company, was given notice of the action by certified mail, return receipt requested as provided by OCGA § 40-9-103 (c). The defendant failed to file any responsive pleadings. On December 15, 1992, a jury trial was conducted and a verdict was rendered in favor of the plaintiffs in the amount of $75,000.

On May 21, 1993, defendant filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 (d) (3) predicated on a contention that the judgment should be set aside because the defendant did not receive notice of trial. The defendant’s counsel attached an affidavit to the motion to set aside in which he averred that he had represented the defendant in a prior civil action between the same parties that had been voluntarily dismissed by plaintiffs. The trial court granted defendant’s motion to set aside the judgment based upon its factual finding that plaintiffs had failed to comply with Uniform State Court Rule 4.8 requiring notice to the court that the present action was the renewal of a previously filed action.

On appeal, plaintiffs assert that any failure to notify the trial court of the renewal status of their action was not a nonamendable defect appearing on the face of the record as required by OCGA § 9-11-60 (d) (3). We agree and reverse.

OCGA § 9-11-60 (d) (3) provides that a judgment may be set aside based upon “[a] non-amendable defect which appears upon the face of the record or pleadings.” The alleged nonamendable defect must be apparent from the face of the record in the absence of the additional evidence. Capital Assoc. v. Keoho, 173 Ga. App. 627, 628 (327 SE2d 586) (1985). “[A] motion to set aside ‘will not be granted where matters upon which it is predicated must be developed by evidence.’ [Cits.]” Glenn v. Maddux, 149 Ga. App. 158, 159 (253 SE2d 835) (1979). In the present case, no error appeared on the face of the record prior to the defendant’s exhibits attached to his motion to set aside the judgment. Therefore, the trial court erred in granting defendant’s motion to set aside the judgment.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Birdsong, P. J., concurs specially.