Fannin v. Durdin

• Decision Date: 31 January 1875
• Citation: 54 Ga. 476
• Parties: James A. Fannin, plaintiff in error. v. John Durdin et al., defendants in error.
• Court: Georgia Supreme Court

54 Ga. 476

James A. Fannin, plaintiff in error. v. John Durdin et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Judgments. Relief act of 1868. Statute of limitations. Before Judge BartlETT. Morgan Superior Court. September Term, 1874.

A report of this case is unnecessary.

REESE & REESE, for plaintiff in error.

Fannin & Billups; A. G. & F. C. Foster; T. H. S. Brobston, for defendants.

McCay, Judge.

The facts of this record do not present a case standing on the same footing as the case of Tison v. McAfee, 50 Georgia, 382, and other cases of like character decided by, this court. In these cases, my judgment was based on the idea that the judgment sought to be set aside by a motion made years after its rendition, was a decision of the court which made it, and that, under our law, if it was wrong, it could only be corrected by a writ of error to this court. As the party complaining had failed to file his bill of exceptions within the time prescribed by law, he could not curehis laches by asking the court rendering the judgment to set it aside and assign as error *the refusal of the judge thus to correct his own errors. It is obvious that this reasoning can only apply to judgments which, in their nature, are decisions of the judge, such as motions and the like, when the mind of the judge is expressly, or by implication, upon the point at issue, and when the judgment is his conclusion of the law upon the facts of the case. In other words, a bill of exceptions must lie to the judgment or decision; the matter must be that which error can be assigned on. The thing complained of must be an error of the judge. As illustrative of what I mean, I might instance a demurrer, a motion to amend, a motion in arrest of judgment, a motion for non-suit, a motion to strike a plea, or any motion or proceeding asking and involving a judgment, decree or decision of the judge that could be excepted to by bill of exceptions. In all such cases, it is my opinion, and I think it has been the uniform ruling of this court, that the party cast is barred unless he file his bill of exceptions within the time prescribed by the statute. Indeed, the Code, in terms, so provides: section 2921. Section 4251 even goes so far as to prescribe that if the decision be not a final one, but only interlocutory, the party complaining shall file an interlocutory bill of exceptions. And this court has uniformly held that however erroneous such an interlocutory judgment may be, the party is concluded by it unless he file his interlocutory bill of exceptions. To permit parties to cure their laches, and do afterwards what they failed to do in the manner and at the time prescribed by law, would, in my judgment, be a judicial repeal of sections 2921 and 4250 of the Code. An error of a judge in 1869, not objected to, cannot be made the subject of a writ of error by asking the judge to correct it after the thirty days has expired, and assigning error on his refusal to do so. But as I have said the present case stands on a different footing. So far as appears from the record there was no decision of the court. The party against whose judgment the motion was taken does not seem to have objected—there wasno demurrer. He met the plaintiff\'s case by taking issue on the facts; a trial was had before a *jury on that issue; a verdict was rendered, and the plaintiff in the original judgment accepted the verdict by entering up a new judgment according to the verdict; nay, upon that judgment he sued out execution, caused it to be levied, and had money raised and assigned to the judgment by the order of the court. In all this proceeding he never asked the judgment of the judge either by demurrer, arrest of judgment, or in any of the ways by which it is usual to get a decision on which a bill of exceptions will lie. For these reasons I do not put my decision in this case on the same grounds as I did in the cases referred to. But I am none the less satisfied that, under the well settled rules of law, thepresent movant is concluded by the judgment of reduction, and is too late now to move to set it aside. As the case presents itself, the record shows that in 1869 the defendant in the original judgment moved the court, in writing, that there were certain reasons why the judgment of 1866 was for too much, and that it ought to be reduced. The plaintiff in the judgment failed to demur to that motion; on the contrary, he denied the facts set forth, and asked a trial by jury on the issue—a trial was had, and the judgment reduced. Thereupon the original plaintiff entered up a new judgment, based upon the verdict, sued out execution, had it levied, sold property, and in a contest with other executions claimed, and received by order of the court, money on his fi fa. In my judgment, he cannot now go behind all these proceedings, and move to set the judgment aside, on the ground that the defendant\'s motion did not contain any legal ground for lessening the judgment; that it was demurrable on its face, and that no legal judgment could be entered up on it. To sustain the right of this movant it is necessary to establish the position, that under our law every judgment, no matter how bitterly it may have been fought—no matter how solemnly it may have been rendered, is always open to attack, if it appear on its face to have been made under a wrong impression of the law: Provided, only, that the attack is made within the statute of limitations. I have shown, *I think, that in all cases where the judgment complained of was an act of the judge, so that it might have been corrected by a writ of error, the party complaining is conclusively presumed for reasons satisfactory to himself to have acquiesced. In the case before us, however, there was no decision of the court, and a bill of exceptions would not have been good, simply because the party cast did not invoke the decision of the court. He did not demur; he did not move in arrest of judgment. On the contrary, he admitted the sufficiency of the grounds of the motion by taking issue on the facts, and the facts having been found against him he failed to move in arrest of judgment. Nay, he himself entered up the judgment, sued out execution, and proceeded to enforce it. As I have said, to justify a party who stands thus, in moving years after against a judgment, it is necessary to assert that any judgment now standing upon the records of any court in this state, not seven years old, or if the cause of action is not barred by the statute of limitations, may be set aside, unless upon the face of the record everything appears necessary to sustain it. If, upon an inspection of the declaration, it appear that there was not a good cause of action, or if the pleas were demurrable, the judgment may be set aside. I do not think this is the law. Independently of proceedings in the nature of an appeal, there was, at common law, two modes of attacking a judgment not void. One was by motion in arrest of judgment, the...