Ford v. Clark
| Decision Date | 14 August 1907 |
| Citation | 129 Ga. 292,58 S.E. 818 |
| Parties | FORD. v. CLARK. |
| Court | Georgia Supreme Court |
A judgment, founded on a verdict obtained by fraud practiced on the defendant and the court, may be set aside, and the original case reinstated, in a court of law, with proper pleadings, and with all the parties at interest as parties to the motion; the motion being made at the term of the court at which the verdict and judgment were entered, and the movant showing that he was not in laches, had a meritorious defense, and announcing ready for an instant trial.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 712, 713.]
The motion to vacate the verdict and judgment and to reinstate the case met the requirements of the foregoing rule, and was supported by the evidence, and the discretion of the trial judge in vacating the verdict and judgment and reinstating the case was not abused.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 712, 713.]
(Syllabus by the Court.)
Error from Superior Court, Colquitt County; R. G. Mitchell, Judge.
Action by J. J. Ford, administrator, against W. S. Clark. Judgment for defendant, and plaintiff brings error. Affirmed.
Ford, as administrator of Graves, instituted his action of ejectment against W. S. Clark, returnable to the April term, 1900, of Colquitt superior court. At the next term a verdict was rendered in favor of plaintiff, and a judgment entered thereon. During the same term, the defendant filed his motion to vacate and set aside the verdict and judgment, alleging that previously to the institution of the suit he had deposited his title deed to the premises in dispute with the counsel for the plaintiff in the ejectment suit. As soon as he was served with a copy of the petition, he applied to plaintiff's counsel for his deeds, for the purpose of preparing his answer to the action of ejectment, when counsel for plaintiff informed him that it was unnecessary to file any answer to the case; that he, as attorney for the plaintiff, would withdraw the suit; and that the same would never go to trial. Relying upon this statement, movant did not file an answer to the suit. He avers that he had a meritorious defense to the ejectment suit, and sets out facts showing a good prescriptive title to the land embraced in the suit He alleges that he had no knowledge that counsel for the plaintiff had violated his promise to dismiss the suit until the term of court at which judgment was taken, and after the plaintiff's counsel, without notice to him, had taken a verdict and judgment against him. He offered to file his answer instanter and announced ready for trial on the merits of the ejectment suit. When this petition was presented to the judge, he granted a rule nisi directed to Ford, as administrator, requiring him to show cause instanter why the verdict and judgment should not be set aside and the defendant allowed to file his answer as prayed. Due and legal service of the order and petition were acknowledged by counsel for plaintiff in the ejectment suit. The plaintiff moved to dismiss the proceeding, on the ground that it was a motion to set aside a verdict and judgment, not predicated upon a defect appearing upon the face of the record. The court overruled this motion to dismiss, and the plaintiff excepted. After hearing the evidence, the court granted the motion to set aside the verdict and judgment, and this judgment also is assigned as error.
W. C. McCall, for plaintiff in error.
Edwin L. Bryan, for defendant in error.
EVANS, J. (after stating the facts as above). 1. There is no doubt that the judgment of a court of competent jurisdiction may be set aside, by the court which rendered it, for fraud and irregularity. Mobley v. Mobley, 9 Ga. 247. An examination of previous adjudications of this court discloses some apparent conflict as to the proper procedure. In Dugan v. McGlann, 60 Ga. 353, it was said that a judgment may be vacated for fraud, accident, or mistake, unmixed with the negligence or fraud of the complaining party, by decree in chancery, or in a court of law with appropriate pleadings, but cannot be set aside on either of those grounds on motion. It has been repeatedly held by this court that a motion to set aside a judgment must be based on some defect which appears on the face of the record. Regopou-las v. State, 116 Ga. 596, 42 S. E. 1014, and citations. But not all motions to set aside judgments are necessarily based on matter appearing on the face of the record. For example,...
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...67 Ga. 604, Goodrich v. Handy, 91 Ga. 29, 16 S.E. 108; Union Compress Co. v. A. Lef-fler & Sons, 122 Ga. 640, 50 S.E. 483; Ford v. Clark, 129 Ga. 292, 58 S.E. 818; Montgomery v. Suttles, 191 Ga. 781(3), 13 S.E.2d 781; Deen v. Baxley State Bank, 192 Ga. 300, 15 S.E.2d 194. This case was cons......
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