Kitchens v. Clay, 24561

• Decision Date: 09 May 1968
• Docket Number: No. 24561,24561
• Citation: 224 Ga. 325,161 S.E.2d 828
• Parties: Buford W. KITCHENS v. George M. CLAY.
• Court: Georgia Supreme Court

Page 828

161 S.E.2d 828

224 Ga. 325

Buford W. KITCHENS v. George M. CLAY.

No. 24561.

Supreme Court of Georgia.

May 9, 1968.

Syllabus by the Court

A court of equity will not set aside a judgment on the ground of fraud in suing on a note alleged to be a forgery, and the discovery since the judgment of evidence of an expert that the note was a forgery, where the issue of forgery was litigated in the original proceeding, and the party exercised no diligence in obtaining expert testimony prior to the trial.

John P. Nixon, Warner Robins, for appellant.

Tommy C. Mann, Clarence H. Clay, Jr., Macon, for appellee.

MOBLEY, Justice.

This case arose from an action brought to set aside a judgment of the State Court of Bibb County, which was rendered in an action brought by the appellee to collect on a promissory note allegedly given him by the appellant. The ground for setting aside the judgment is that it was procured by fraud on the part of the appellee in that the note on which the suit was brought was a forgery as to the signature of the appellant, which fact was well known by the appellee. The appellant alleges that the issue of forgery was raised by his answer and the evidence offered by him, and that since the trial and rendition of the judgment he has secured evidence of an expert that his signature on the note was a forgery, as shown by letter from the expert attached to his petition. He alleges further that he has not been negligent or inadvertent in producing the evidence, as the expert was not available to him at the time of the trial. In addition to praying that the judgment be declared void and canceled, he prayed for temporary and permanent injunction to restrain collection on the judgment.

The appellee's defense in his answer is that the complaint fails to state a claim upon which relief can be granted; and that the issue of forgery was litigated in the first trial, any evidence of the issue of forgery could have been offered at the original trial by the exercise of due diligence on the part of the appellant, and further evidence on the issue would be cumulative. The appellee also filed a motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted.

In response to the motion to dismiss, the appellant filed an affidavit of 'Sidney J. McMain, Examiner of Questioned Documents,' stating that he was unable to appear in court for the appellant during January, 1967, as he was ill in a clinic at the time, and immediately upon being contacted he submitted a report that he had examined the signature on the note and in his opinion it was a forgery. The examiner was contacted on September 12, 1967, approximately eight months after the judgment was rendered.

The court, after hearing argument, sustained the motion to dismiss and dismissed the petition. The appellant enumerates this ruling as error.

'Judgments may be attacked by complaint in equity in any superior court of appropriate jurisdiction. * * * Complaint in equity may be brought to set aside a judgment for fraud, accident or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant * * *' Ga.L.1966, pp. 609, 663; Ga.L.1967, pp. 226, 239 (Code Ann. § 81A-160(b and e)). The principles of law in Code Ann. § 81A-160(e) are the same as those in Code §§ 37-219 and 110-710, which were repealed by the Civil Practice Act, and cases decided under...