Union Compress Co. v. A. Leffler & Son

• Decision Date: 27 March 1905
• Citation: 50 S.E. 483,122 Ga. 640
• Parties: UNION COMPRESS CO. v. A. LEFFLER & SON.
• Court: Georgia Supreme Court

50 S.E. 483

122 Ga. 640

UNION COMPRESS CO. v. A. LEFFLER & SON.

Supreme Court of Georgia

March 27, 1905

Syllabus by the Court.

1. In a proper proceeding by petition, with rule nisi or process, and service upon the necessary parties, the courts of this state may exercise the jurisdiction, which obtained at common law to set aside judgments for irregularities not appearing on the face of the record.

2. Judgments can be arrested or set aside on motion only for defects appearing on the face of the record.

3. The original motion in arrest of the judgment against the garnishee was insufficient because it sought to take advantage of defects appearing on the face of the separate and distinct record in the case against the main defendant.

4. Rule 44 (Civ. Code 1895, § 5675), requiring all grounds in a motion in arrest to be insisted upon at once, does not interfere with the right of the movant to amend at any time prior to final decision.

5. If the motion is once granted for any reason, and the judgment thereon is set aside, the motion is still pending, with the right of the movant to amend, as in the first instance.

6. Where a motion in arrest was granted by the trial court, and that judgment was reversed by the Supreme Court, until the remittitur was entered the motion in arrest was still so far pending as to be enough to amend by.

7. There was no demurrer, nor does the record disclose what oral objections were urged against the allowance of the amendment. It was in time, and should have been allowed.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by A. Leffler & Son against Jones Bros. The Union Compress Company was garnishee. From an order refusing an amendment to a motion in arrest of a judgment against it, the garnishee brings error. Reversed.

Wm. H Fleming, for plaintiff in error.

Brooks & Picquet, Johnson & Young, and Jacob Gazau, for defendant in error.

LAMAR, J. (after stating the foregoing facts).

The judgments of every court of record may for good cause be opened, vacated, or amended during the term. It may be that the ground of the attack on the judgment is such that the complaining party can obtain relief only in a court of equity. Or it may be that relief may be had at law and in the court which rendered the original judgment. And while the remedy by motion is limited by Civ. Code 1895, § 5362, to cases where the defect appears on the face of the record, the court is not deprived of the jurisdiction to grant relief against judgments irregularly or improperly obtained. If the irregularities are of a nature which could have been taken advantage of by motion at common law (Fannin v. Durdin, 54 Ga. 479), the same relief can now be obtained in this state by petition, to which all necessary parties have been made, and where either a rule to show cause or regular process has been attached and duly served. Turner v. Jordan, 67 Ga. 604; Dugan v. McGlann, 60 Ga. 353; Regopoulas v. State, 116 Ga. 597, 42 S.E. 1014.

3. Here the garnishee proceeded by motion in arrest. It could not, therefore, take advantage of defects appearing in the separate and independent record wherein the judgment was obtained against the main defendant. For this reason the original motion was improperly sustained. Leffler v. Union Compress Co., 121 Ga. 40, 48 S.E. 710.

4. But when the remittitur ordering a reversal was transmitted to the lower court, there was something to amend by. The garnishee could add a good ground to those which had been held insufficient. There was no demurrer, general or special to the amendment offered after the remi...