Bolton Road Medical Center v. Strother & Co. , 140 Ga. App. 724 ( 1976 )

Bell, Chief Judge.

This is an appeal from the denial of defendant partnership’s motion to set aside a judgment under CPA § 60 (d) (Code Ann. § 81A-160 (d)).

The complaint was filed on September 5, 1975 and the defendant answered on October 8, 1975. The individual partners acknowledged service on October 30, 1975. A judgment consented to by the parties was entered on November 13, 1975. Held:

1. The fact that an answer was filed by defendant prior to service on the individual partners furnishes no basis to set aside this judgment for the defense of lack of service was waived by the failure to assert it in the answer. CPA § 12 (b) (1). Neither does the fact that the individual partners were not named in the caption of the case in compliance with CPA § 10 (a) (Code Ann. § 81A-110 (a)) authorize setting the judgment aside for this is an amendable defect. Atlanta Veterans Transp. v. Westmoreland, 123 Ga. App. 466 (181 SE2d 504).

2. In support of its motion to set aside the defendant submitted an affidavit of plaintiffs attorney to the effect that the consent judgment was entered by mistake. This alleged defect will not authorize the setting aside of this judgment for the reason that it does not appear on the face of the record of pleadings as required by CPA § 60 (d). See Farr v. Farr, 120 Ga. App. 762 (172 SE2d 158).

Argued October 7, 1976 Decided November 24, 1976 Rehearing denied December 9, 1976 Scheer & Eisner, Robert A. Eisner, for appellant. Huie, Ware, Sterne, Brown & Ide, Alton H. Hopkins, Thomas J. Wingfield, III, William Earl Strother, Sr., for appellee.

3. The motion for damages for delay under Code § 6-1801 is denied.

Judgment affirmed.

Clark and Stolz, JJ., concur.