Raines v. Lane

• Court: Georgia Supreme Court
• Writing for the Court: JENKINS, Presiding Justice.
• Citation: Raines v. Lane, 198 Ga. 217, 31 S.E.2d 403 (Ga. 1944)
• Decision Date: 07 September 1944
• Docket Number: 14924.
• Parties: RAINES et al. v. LANE.

31 S.E.2d 403

198 Ga. 217

RAINES et al. v. LANE.

No. 14924.

Supreme Court of Georgia

September 7, 1944

Syllabus by the Court.

1. The dismissal by the trial court of the motion to set aside a consent judgment based on a written agreement was not only authorized but demanded, in that it failed to show that the judgment sought to be set aside violated any of the terms of the written agreement on which it was based. Especially is this true where, as here, neither the motion nor the proof showed the exercise of any sort of diligence by the plaintiff in ascertaining the alleged failure to comply with certain alleged antecedent oral understandings, not embodied in the agreement, and failed to show any fraud in procuring the consent of the plaintiff to the rendition of the judgment.

2. A motion to set aside a judgment is addressed to the sound discretion of the court. Hurt Bldg. v. Atlanta Trust Co., 181 Ga. 274(3), 182 S.E. 187. Accordingly, the judge did not err in failing, on his own motion, to invoke findings of fact by a jury, especially where no such motion was made, but on the contrary, counsel for both parties appeared and entered upon the trial before the court. Chappell v. Small, 194 Ga. 143(2), 20 S.E.2d 916.

3. No ruling need be made upon the propriety of the court's hearing the case in Mitchell County rather than in Dougherty County, where the judgment sought to be set aside was obtained, since it appears that the attorney for the movants presented the motion to the judge in Mitchell County and requested that it be set for hearing in that county, and that the attorney appeared in that county and presented his case without any objection to the jurisdiction. Poss v. Norris, 197 Ga. ---- (2), 29 S.E.2d 705(3), 707, and cases cited.

The motion to set aside a consent judgment shows that the plaintiffs had previously brought a petition for damages for the alleged value of timber cut by the defendant, a contiguous owner, from certain described land alleged to have been owned by the plaintiffs, and had prayed for an injunction against further depredation. The motion shows that, while the former suit was pending, the parties entered upon a written agreement whereby it was agreed that a designated surveyor was to run the line and establish the boundaries between the plaintiffs and the defendant, and thus establish the true ownership of the timber and lands in dispute; that by the terms of such written agreement each of the parties was to be bound by the determination of such boundary as made by the designated surveyor; that the survey thus provided for was made; and that the report of the surveyor, accompanied by a plat showing the correct boundary line of the contiguous owners, was by the consent of each of the parties made the judgment of the court. The motion to set aside avers that the surveyor in running the line failed to go over into another and adjoining county and check the disputed boundary line from established lines in that county which, it is alleged, had been the oral understanding before the signing of the written agreement. It was not alleged however, that the written agreement so required; nor did the proof show that the intention of the parties had been to embody body such an understanding in the written agreement. Neither the allegations nor the proof showed how or wherein such a procedure was necessary to a correct determination of the...