Collier v. Hirsch, 39637

• Decision Date: 10 September 1962
• Docket Number: No. 1,No. 39637,39637,1
• Citation: 106 Ga.App. 652,127 S.E.2d 859
• Parties: J. T. COLLIER v. Jack HIRSCH
• Court: Georgia Court of Appeals

Page 859

127 S.E.2d 859

106 Ga.App. 652

J. T. COLLIER v. Jack HIRSCH.

No. 39637.

Court of Appeals of Georgia, Division No. 1.

Sept. 10, 1962.

Rehearing Denied Sept. 26, 1962.

Syllabus by the Court

'To authorize a court to set aside a default judgment on the ground that it was obtained by fraud practiced by the successful party, the party seeking relief must show that he was prevented from making his defense by said fraud, unmixed with negligence on his part.' Hirsch v. Collier, 104 Ga.App. 271, 121 S.E.2d 318.

The facts alleged when the motion for the defendant (plaintiff in error) to set aside a default judgment was previously before this court are set out in Hirsch v. Collier, 104 Ga.App. 271, 121 S.E.2d 318. After that decision the defendant amended his motion by alleging that the acceptance by plaintiff (defendant in error) of the defendant's check, endorsed 'This check to be cashed only if Jack Hirsch CPA accepts it in full settlement and drops his legal action against J. Taylor Collier, d/b/a One Hour Martinizing. 355 Blvd. N.E., Atlanta, Georgia,' occurred on December 26, 1960, when the plaintiff received it 'intending to retain said check in his possession for the purpose of reducing same to cash money at a later date.' The amendment alleged that this acceptance of the check was an accord and satisfaction 'made and executed on December 26, 1960, between the movant and respondent herein, of the cause of action sued upon in the abovenumbered and styled suit which was then pending against movant,' and that, 'As a result of the making of said accord and satisfaction on December 26, 1960 by the receipt and acceptance of said check on December 26, 1960, with said endorsement thereon, the respondent agreed to dismiss this suit No. 782851 in this court and not to permit a default judgment to be taken thereon.' The plaintiff's renewed demurrer to the amended motion was sustained, and the defendant excepts thereto.

Houston White, Atlanta, for plaintiff in error.

Almon, Clein & Ray, Everett L. Almon, Harvey A. Clein, Atlanta, for defendant in error.

HALL, Judge.

1. This appeal presents the same question that we considered on the former appeal of the case--does the defendant's motion to set aside a default judgment allege facts upon which the relief can be granted? The only factual allegation added by the amendment is that when the plaintiff received the check on December 26, 1960, he intended to retain and cash it. It is not necessary for us to decide whether the plaintiff accepted the defendant's check as an accord and satisfaction on December 26, 1960, because this is a question of the substance of defendant's legal defense, not a question of the defendant's diligence in making the defense. We will assume, however, that the defendant's conclusion of law alleged in the amendment is correct, that the plaintiff accepted the defendant's check as an accord and satisfaction and agreed to dismiss the suit on December 26, 1960, and not to take a default judgment. In the amendment there is still 'no allegation of any act by the plaintiff before the judgment was rendered upon which the defendant reasonably could have placed confidence or been assured that plaintiff would not take a judgment against him, or that prevented the defendant from appearing to defend the suit. * * * ' See Hirsch v. Collier, supra, p. 275, 121 S.E.2d 318. Since this essential element is still missing in the amended motion, it is the law of this case that the motion cannot withstand the general demurrer. Clements v. Hollingsworth, 205 Ga. 153, 154, 52 S.E.2d 465. As the trial judge stated in his order sustaining the demurrer, the amendment does not show that the defendant knew of any agreement by the plaintiff to dismiss the suit. Having had no assurance from the plaintiff upon which he could rely to ignore the pendency of the suit, or any other good reason to be misled, the defendant was not deceived by the plaintiff, and the motion shows a mixture of defendant's negligence with the plaintiff's alleged fraudulent conduct. Hirsch v. Collier, supra; Penn & Watson v. McGhee, 6 Ga.App. 631, 65 S.E. 686; Peacock v. Walker, 213 Ga. 628, 630, 100 S.E.2d 575.

2. Even if we assume arguendo that it is not the law of the case that the motion cannot withstand the general demurrer, the result is the same. The gist or gravamen of a motion to set aside a judgment for fraud is the deceit which is practiced. Beavers v. Williams, 199 Ga. 113, 128, 33 S.E.2d 343. The fraud for which a judgment will be vacated is actual as distinguished from constructive fraud. Poole v. McEntire, 209 Ga. 659, 664, 75 S.E.2d 20. A wrongful act is not enough; there must be reliance by the movant upon such act to authorize the court to set aside the judgment. Poole v. McEntire, supra 663; accord, Hogg v. Hogg, 206 Ga. 691, 694, 58 S.E.2d 403. The plaintiff's silent agreement to the condition that he drop the suit can not be construed as an assurance to the defendant that 'lulled him into inaction.' McGinnis v. Scheer, 182 Ga. 684(1), 186 S.E. 804. The 'mere failure of a party to disclose to the court...