Griffin v. FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC. , 149 Ga. App. 22 ( 1979 )

149 Ga. App. 22 (1979) 253 S.E.2d 422

GRIFFIN
v.
FIRST PROFESSIONAL SCHOOL OF GEORGIA, INC.

56925.

Court of Appeals of Georgia.

Submitted November 14, 1978. Decided February 9, 1979.

Robert Connelly, for appellant.

Levy & Adams, D. Merrill Adams, M. Alvin Levy, for appellee.

BANKE, Judge.

The plaintiff sued for $495 allegedly due under a contract and obtained a default judgment for that amount. The defendant filed a motion to set aside the judgment alleging that the plaintiff's claim was for unliquidated damages, that these damages had not been proven, and that this created a non-amendable defect on the face of the record. The court denied the motion, and the defendant appeals. Held:

A plaintiff in an action ex contractu may obtain a default judgment without introducing evidence as to the amount of damages provided the damages are liquidated. If the claim involves unliquidated damages, the plaintiff is required to introduce evidence and establish the amount of damages before a court without a jury. CPA § 55 (a) (Code Ann. § 81A-155 (a)). This was clearly an action ex contractu, and there is nothing in the complaint to indicate that the damages were unliquidated. Accord, Allied Store Utilities Co. v. Bennett, 64 Ga. App. 524 (2) (13 SE2d 906) (1941). Thus, the defendant failed to establish a non-amendable defect appearing on the face of the record, and the court properly denied defendant's motion to set aside. CPA § 60 (d) (Code Ann. § 81A-160 (d)).

Judgment affirmed. Deen, P. J., and Smith, J., concur.