Artope v. Barker

• Decision Date: 24 February 1885
• Citation: 74 Ga. 462
• Parties: ARTOPE et al. v. BARKER.
• Court: Georgia Supreme Court

74 Ga. 462

ARTOPE et al. v. BARKER.

Supreme Court of Georgia.

February 24, 1885

February Term, 1885.

A motion to set aside a judgment, like a motion in arrest, must be grounded on defects apparent on the face of the record which are not amendable. It differs from a motion in arrest of judgment only in that the latter must be made during the term when the judgment was rendered, while a motion to set aside a judgment can be made at any time within the period of the statute of limitations.

( a. ) While a declaration against a trust estate may have been defective in not setting out the trust, its terms and character, and may have been demurrable on that ground yet it would have been amendable, and after judgment this defect is cured; and a motion to set aside the judgment cannot be sustained.

( b. ) If movants have any rights, they may assert them in equity.

Motion in Arrest of Judgment. Motion to set aside Judgment. Judgments. Pleadings. Before Judge SIMMONS. Bibb Superior Court. October Term, 1884.

Susan M. Artope et al. filed a motion to set aside a judgment previously rendered in favor of George R. Barker against J. B. Artope, as trustee, on the following grounds:

(1.) Because the declaration did not authorize the court to render the judgment, it not alleging that the articles furnished to the trustee were for the use of the trust estate; the terms of the trust not being shown, so as to disclose to the court its scope and purposes and what, if any, restrictions were placed upon the power of the trustee; no value of the estate being alleged; it not being stated that the trust yielded an income, or whether encroachment upon the corpus would be necessary or proper; the condition in life or the wants of the cestuis que trust not appearing; and the declaration not alleging that the supplies were furnished for the use of the beneficiaries.

(2.) Because the declaration did not show how or in what manner the trust estate became liable for the payment of the debt and because the evidence submitted upon the trial was not sufficient to authorize the court to grant the judgment.

(3.) Because the declaration is fatally defective in failing to disclose that the beneficiaries were sui juris, it being a suit to render a trust estate liable for the individual debt of the trustee.

(4.) Because the declaration failed to set out the names of all the cestuis que trust, the names of certain minors being omitted.

(5.) Because none of the beneficiaries were served, though some of them were of age, but only the trustee.

(6.) Because no trust estate, as alleged, ever existed.

(7.) Because the judgment was contrary to law and evidence.

The declaration in the original case of Barker vs. Artope, trustee, was as follows:

Petition of George R. Barker showeth that J. B. Artope, of said county, as trustee of his wife, Mrs. S. M. Artope, and of his children (stating names), who are the beneficiaries of the trust estate, is indebted to your petitioner in the sum of one hundred and sixty-four dollars on a promissory note dated July 30, 1880, and due six months after said date payable to petitioner or bearer, a copy of which is hereto annexed as Exhibit A; and also in the sum of fifty-one 33-100 dollars on an open account, as will fully appear by reference to a bill of particulars hereto annexed as Exhibit B. Said debts, both note and account, were contracted by said trustee in the purchase from petitioner of provisions for the use and support of said beneficiaries. The same consisted of groceries and supplies, and were sold to said trustee as such for said beneficiaries, and the said trust estate became thereby liable to pay said petitioner said demand.

The trust estate of said trustee...