S. J. Kilpatrick Construction Company v. Sizemore

Full title: S. J. KILPATRICK CONSTRUCTION COMPANY v. SIZEMORE

Court: Court of Appeals of Georgia

Date published: Sep 13, 1991

410 S.E.2d 386 (Ga. Ct. App. 1991)

410 S.E.2d 386

Opinion

A91A0882.

DECIDED SEPTEMBER 13, 1991.

Action on note. Fulton State Court. Before Judge Mather, pro hac vice.

Allman Lanner, Denise R. Griffin, for appellant.

John L. Blandford, for appellee.

Anthony Sizemore, pro se.

Richard Sizemore, pro se.

CARLEY, Presiding Judge.

Appellant-plaintiff filed suit, seeking to recover on a promissory note. Although the complaint named "Richard D. Sizemore" as the defendant, the note attached thereto bore the name and signature of "Richard D. Sizemore, Jr." The complaint was served at the residence of appellee-defendant Richard D. Sizemore, Sr. When no answer was filed, appellant secured a default judgment against "Richard D. Sizemore." When appellant sought to enforce this default judgment against appellee, appellee filed a motion to set that default judgment aside as to him. The trial court granted the motion and appellant appeals.

Assuming without deciding that appellant had ever even obtained a default judgment against appellee, the trial court clearly did not err in setting that default judgment aside. The note attached to the complaint shows that appellant's claim is against "Richard D. Sizemore, Jr." and that appellant has no claim whatsoever against appellee. See generally Gilham v. Stamm Co., 117 Ga. App. 846 ( 162 S.E.2d 248) (1968).

Judgment affirmed. Beasley and Cooper, JJ., concur.

DECIDED SEPTEMBER 13, 1991.