Via certificate of immediate review, plaintiff appeals from the grant of co-defendant Knox A. Griffin’s motion to set aside judgment rendered in favor of plaintiff Orkin Exterminating Company.
Plaintiff brought suit against Wendell L. Townsend, doing business as Townsend Roofing Company, and Continental Casualty Company, Townsend’s bondsman, alleging defendants were liable for the defective installation of a roof upon an annex to plaintiff’s building. *51 Thereafter, plaintiff amended its complaint to add Knox A. Griffin, an architect, as a party defendant, alleging Griffin was also liable for having faultily designed the roof. This appeal is concerned only with the subsequent history of plaintiffs suit with regard to defendant Griffin.
Following service of the amended complaint, Griffin failed to answer and his case became in default. On the day of the trial limited to the issue of damages, plaintiff amended its complaint to increase the demand for judgment from $19,750 to $23,500. Upon the trial’s conclusion, the jury rendered a verdict for the increased amount. Determining that there was no just reason for delay, the trial court directed the entry of judgment against defendant Griffin only in accordance with the jury’s verdict.
More than one year later, Griffin made a motion to set aside the judgment. This attack came after defendant Townsend moved for summary judgment in the case remaining for trial. There, in opposition to Townsend’s motion, plaintiff submitted two affidavits which bear upon the case sub judice. By way of the first affidavit, plaintiff exhibited its correspondence with regard to the "roof’ litigation. In one such letter, written long after the roof was completed and the defects were discovered, plaintiffs insurance director wrote that "the building is well designed and is in sound condition.” In the second affidavit, plaintiffs maintenance supervisor averred that the "roofing problems were the result of the improper performance of the roofing contractor [Townsend] which included poor workmanship, improper application of the roofing materials and the use of defective materials.”
The trial court concluded that (1) it would be "unconscionable to allow plaintiff to recover damages from defendant Knox A. Griffin for alleged faulty roof design when plaintiff, by its own affidavits in opposition to another defendant’s motion for summary judgment, shows that the roof was not faultily designed” and (2) "plaintiffs action in amending its complaint to increase the amount sought from defendant Knox A. Griffin on the same date that plaintiff took a default judgment against defendant Griffin” was unlawful. Consequently, the trial court granted Griffin’s motion to set aside. Held:
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1. A motion to set aside must be predicated upon a nonamendable defect which affirmatively appears on the face of the pleadings or record. Code Ann. § 81A-160 (d);
Paine v. Bd. of Tax Assessors,
In Gilham, a default judgment in a suit on account was rendered against an individual defendant who had been sued jointly with a corporate defendant. The account sued upon, attached to the complaint as an exhibit, showed that the items and services were sold and delivered to the corporate defendant only. Since the exhibit contradicted the general allegations of the petition, and since an exhibit attached to a complaint controls over its general allegations, the court was presented with a nonamendable defect on the face of the pleadings. Accordingly, as to the individual defendant, a motion to set aside was in order.
Defendant’s reliance upon
Gilham
is not apropos. In that case, the court was confronted with a solemn admission in judicio as made by the pleadings. See
Nat. Advertising Co. v. North American Ins. &c. Co.,
2. Code Ann. § 81A-154 (c) provides, in part: "A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” The reason for this rule is well stated in
*53
Wright & Miller, Federal Practice and Procedure: Civil § 2663: "It would be fundamentally unfair to have the complaint lead defendant to believe that only a certain type and dimension of relief was being sought and then, should he attempt to limit the scope and size of the potential judgment against him by not appearing or otherwise defaulting, allow the court to give a different type of relief or a larger damage award.” See also
Dempsey v. Ellington,
Here the portion of the judgment under attack which awards plaintiff more relief than it requested in its original complaint is null and void. Accordingly, we reverse the grant of defendant’s motion to set aside with the direction that damages in excess of $19,750 be written off. See generally
Chicago Bldg. &c. Co. v. Butler,
Judgment reversed with direction that damages in excess of $19,750 be written off.