Field v. Jordan

• Decision Date: 12 January 1906
• Citation: 124 Ga. 685,52 S.E. 885
• Parties: FIELD . v. JORDAN et al.
• Court: Georgia Supreme Court

52 S.E. 885

124 Ga. 685

FIELD .

v.JORDAN et al.

Supreme Court of Georgia.

Jan. 12, 1906.

Judgment—Setting Aside—Laches.

Complainants having negligently allowed three years to pass without seeking to set aside the judgment complained of at law, under the facts of this case equity can grant them no relief.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by J. W. Jordan and others against T. S. Field. Judgment for plaintiffs, and defendant brings error. Reversed.

R. C. Lovett and W. W. Haden, for plaintiff in error.

R. J. Jordan, for defendants in error.

BECK, J. The plaintiffs below filed their equitable petition to the superior court, alleging that they were the defendants in an action brought against them by Field, the defendant in the case at bar, and that when the case came on for trial at the April term, 1900, of the justice's court in which it was pending, a demand was made for a bill of particulars, whereupon the magistrate continued the case for the term and marked upon his docket, "Bill of particulars demanded, and cont." But during the term at which the case was continued, to wit, on May 1, 1900, the justice rendered judgment against petitioners without their knowledge. When their attention was called to this judgment by a summons of garnishment which had been issued thereon, their counsel immediately brought to the attention of counsel for Field the fact that the judgment was irregular, and Field's counsel promptly agreed that it should be treated as a nullity, and it was so treated; the justice acquiescing therein and setting the case down again for trial. When the case thus came on for trial it was continued at the request of Field, who, "on cross-examination, showed that there was better evidence than his own as to the correctness of the account sued on." Since that trial the case has been continued from time to time, but never tried. In December, 1903, Field, having employed other counsel than those who made the agreement to treat the judgment as void, again proceeded to enforce the judgment rendered May 1, 1900, and it is to restrain him from so doing that this action was brought. The judge below granted the injunction prayed for, and Field excepted. The evidence introduced upon the hearing disclosed a state of facts substantially similar to those alleged in the petition. The defendant, however, did make an affidavit to the effect that he had never agreed to consider the judgment a nullity and had not ratified the agreement of his former counsel treating it as such. In addition to his answer, the defendant filed a demurrer upon the ground, among others, "that more than three years have elapsed since said judgment was rendered, and the filing of this proceeding to set the same aside, and the same is barred." As the judgment will be reversed upon this ground of the demurrer, it is unnecessary to set forth the other grounds.

Whatever may be the moral duty of Field in regard to this judgment, he cannot be restrained, either at law or in equity, from enforcing it. In the case of Field v. Peel, 122 Ga. 503, 50 S. E. 346, it was...