Southern Discount Co. v. Cooper

Evans, Judge. Southern Discount Company sued Willie C. Cooper, Patricia Cooper and Doris Cooper for the balance due on a promissory note made under the Georgia Industrial Loan Act. A default judgment was awarded the plaintiff and garnishment proceedings were filed. Defendants then filed a motion to vacate and set aside the judgment because of a nonamendable defect appearing on the face of the complaint, which, they contend, rendered the the judgment null and void. The court granted the motion to set aside the judgment, and in its order there appears the following: "The Plaintiffs Complaint did not allege that it was a licensee under the Georgia Industrial Loan Act. Its Note was attached as an Exhibit to its Complaint. No claim was made by the Plaintiff for attorney’s fees in said action. Subsequent to the rendition of the Judgment and after the institution of the Garnishment Action predicated upon the Judgment rendered the Defendants Doris and Patricia Cooper filed a Motion to Set Aside the Judgment on the ground that on the face of the Complaint there appeared to be a non-amendable defect which rendered the Judgment null and void.” Plaintiff appeals. Held: As a condition precedent to recovery of an obligation incurred under the provisions of the Industrial Loan Act it must appear either in the pleadings or the evidence that the lender was licensed under the Act to engage in the business of making loans. See Jobson v. Masters, 32 Ga. App. 60 (3) (122 SE 724); Robinson v. Colonial Discount Co., 106 Ga. App. 274, 278 (126 SE2d 824); Southland Loan &c. Co. v. Brown, 53 Ga. App. 786, 787 (187 SE 131); Bayne v. Sun Finance Co. No. 1, 114 Ga. App. 27 (2, 3, 4, 6) (150 SE2d 311); Hardy v. R & S Finance Co., 116 Ga. App. 451 (1) (157 SE2d 777); Household Finance Corp. v. Johnson, 119 Ga. App. 49 (165 SE2d 864). The petition itself does not allege that the plaintiff is licensed, nor is it shown in the exhibits that the plaintiff is licensed under the Industrial Loan Act. In Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899), the Supreme Court holds that it is not necessary under the Civil Practice Act for the plaintiff to plead the license as a condition precedent, nevertheless there must be evidence at the trial. Here judgment was entered by default, and we have no way of ascertaining just what evidence was presented at the time judgment was rendered. The judgment was not void on its face, nor was it shown to be void "upon the face of the record or [224] pleadings.” Nor do the pleadings show affirmatively that no claim in fact existed. Code Ann. § 81A-160 (a, d) (§ 60, CPA; Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240). Argued September 13, 1973 Decided October 23, 1973 Rehearing denied November 13, 1973 Harris Bullock, for appellant. Kenneth G. Levin, for appellees. Judgment reversed. Hall, P. J., and Clark, J., concur.