Apperson v. Mutual Fertilizer Co.
| Decision Date | 13 June 1918 |
| Docket Number | 732. |
| Citation | 96 S.E. 260,148 Ga. 159 |
| Parties | APPERSON ET AL. v. MUTUAL FERTILIZER CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
After a judgment at law a party cannot, by original bill, avail himself of a relief which he might have had pending the action. Where a judgment at law is void for reasons appearing on the face of the record, and the remedy at law is adequate complete, and available, equity will not afford relief. Accordingly, the petition was properly dismissed on general demurrer.
Additional Syllabus by Editorial Staff.
A technical bill of review does not lie in Georgia, but a bill in the nature of a bill of review does lie.
A bill in the nature of a bill of review lies only to review a decree of a court of equity, and not a judgment at law.
Where a bill in the nature of a bill of review is proper, it must affirmatively appear that petitioner could not, by due diligence, obtain the just and needed relief by motion.
Where every infirmity in a judgment appears on the face of the record, a motion in arrest of judgment is an available remedy.
If judgments are illegal and void, an affidavit of illegality is a proper remedy to resist the enforcement of execution.
Error from Superior Court, Chatham County; P. W. Meldrim, Judge.
Petition to set aside a common-law judgment by S. M. Apperson and another against the Mutual Fertilizer Company. General demurrer to petition sustained, and plaintiffs except and bring error. Affirmed.
A. S Bussey, of Cordele, for plaintiffs in error.
Jno. B Hutcheson, of Jonesboro, for defendant in error.
GEORGE, J. (after stating the facts as above).
The plaintiffs treat their petition as a bill of review. A technical bill of review does not lie in this state, but a bill in the nature of a bill of review does lie. Brower v. Cothran, 75 Ga. 9 (2a). A bill in the nature of a bill of review lies only to review a decree of a court of equity, and not a judgment at law. Donaldson v. Roberts, 109 Ga. 833, 35 S.E. 277. Where such a bill is proper, it must affirmatively appear that the petitioner could not, by due diligence, obtain the just and needed relief by motion. Central Georgia Bank v. Iverson, 73 Ga. 19; Donaldson v. Roberts, supra.
Every infirmity in the judgment against Apperson and in the judgment against Henderson appears upon the face of the record. A motion in arrest of judgment was therefore an available remedy. If the judgments are illegal and void, as alleged in the petition, affidavit of illegality was a proper remedy to resist the enforcement of the execution. Harrell v. Davis Wagon Co., 140 Ga. 127, 78 S.E. 713; Williams v. Hinson, 143 Ga. 740, 85 S.E. 868.
The petition in the instant case, as we have indicated, is not in reality a bill in the nature of a bill of review, but is a petition to set aside a common-law judgment. What we have said above applies with equal force to the petition when so considered. Equity will not relieve against a judgment if the defendant has an available, adequate, and complete remedy at law. The matters and things set forth in the petition as reason for interference with the judgments could have been pleaded in the city court of Ashburn, because all of them were apparent on the face of the record, and may now be urged by an affidavit of illegality if they possess any legal...
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