Cooper v. Pete Buckley & Co. , 135 Ga. App. 889 ( 1975 )

Bell, Chief Judge.

Plaintiff sued on an open account. Defendant was served but filed no defensive pleadings. A judgment by default was entered. The complaint described the defendant as "Joseph R. Cooper, d/b/a The Athletic Comer of Tucker, Georgia.” Attached to the complaint were account cards which showed that the account was the debt of "The Athletic Comer” of Tucker, Georgia. After the entry of the default judgment, defendant filed a motion to amend the judgment to conform to the pleadings or alternatively to set aside the judgment. In support of the motion defendant attached his affidavit and a check. In the affidavit he averred that he is the president of "The Athletic Comer, Inc.,” a Georgia corporation; and that the attached check was used to make a payment on the account attached to plaintiffs complaint. The check had imprinted on it "The Athletic Corner, Inc., 2196 Northlake Parkway, Tucker, Georgia,” was made payable to plaintiff and was signed by defendant. The motion was denied. Held:

There is no basis to grant defendant’s motion. The allegations of the complaint are completely consistent with the attached account cards. The complaint named the defendant and his trade name and the account card listed the debtor in the trade name. Nowhere does it appear on the face of the record that indebtedness was in a corporation rather than an individual. The defendant was personally served, failed to answer as required by law, and thus he has had his day in court. See Robinson-Shamburger, Inc. v. Tenney, 135 Ga. App. 131 (217 SE2d 184).

Judgment affirmed.

Webb and Marshall, JJ., concur.