Revels v. Kilgo , 157 Ga. 39 ( 1923 )

Hines, J.

On December 2, 1921, during the December term of Haber-sham superior court, Revels filed his petition and motion to set aside the verdict and decree previously rendered in a claim case in which he was plaintiff in ft. fa., one Hicks was defendant in fi. fa., and Kilgo was claimant. The rule nisi issued upon this motion was returnable to the March term, 1922, of that court. In his answer to this motion and rule nisi Kilgo pleaded that the movant had previously filed another motion upon substantially the same grounds to set aside said decree, that a demurrer thereto had been sustained, and that this judgment was a bar to the present motion. The demurrer of Kilgo to the first motion to set aside the verdict and decree in the claim case were on the grounds: (1) that it shows on its face that the relief sought should not be granted; (2) that it shows on its face that the judgment attacked is a valid judgment; (3) that it nowhere appears therein why said judgment should be set aside; (4) that the same was filed in vacation, and not during term time. The court rendered this judgment on the demurrer: “Considering the entire proceedings under the original and amended demurrer, it is ordered and adjudged that the demurrer be sustained and the motion dismissed.” The previous or first motion to set aside the verdict and judgment in the claim case shows on its face that it was filed in vacation, and the rule nisi was applied for and granted at chambers in vacation, and not in term time; but the rule nisi was returnable to the next term of the court, and the demurrer to the motion -was heard in term time and the judgment overruling the demurrer was rendered in term time. On the hearing of the second motion to set aside the verdict and judgment in the claim ease, the judge (by whom, by agreement of the parties, all questions of fact and ■law were to be heard and determined. without the intervention of a jury) sustained the plea of res adjudicata filed by the claimant to the second motion of the plaintiff in fi. fa. to set aside the verdict and judgment in the claim. To this ruling the plaintiff in fi. fa. excepted upon the ground that the first motion to set aside this -verdict and judgment was void because begun in vacation, and in consequence of this fact the judgment sustaining the demurrer to this motion was void, because the judge was without jurisdiction to grant the rule nisi in vacation, although the judgment sustaining the demurrer thereto was rendered in term time. Held:

(a) While this court has ruled that the judge of the superior court has no authority to entertain in vacation a motion to set aside a judgment of that court and is without jurisdiction to render judgment on such motion in vacation (Haskins v. State, 114 Ga. 837, 40 S. E. 997; U. S. Fidelity & Guaranty Co. v. First National Bank, 149 Ga. 132, 99 S. E. 529), and that an order or judgment so passed may be collaterally attacked (Callaway v. Irvin, 123 Ga. 344, 51 S. E. 477), and that such order or judgment will not operate as res adjudicata in a subsequent suit touching the same subject-matter in a court of competent jurisdiction (Dix v. Dix, 132 Ga. 630, 64 S. E. 790), the judgment attacked in this case was one passed in term time, and, although passed in a proceeding begun in vacation, was not null and void for lack of jurisdiction of the judge to pass the same. The hearing of the motion being had, and the judgment being rendered in term time, made the proceeding a matter in term; and if the original proceeding was a bastard in the law, it was duly adopted by the judge in term time, and its legitimacy was thus fully established.

(b) If in rendering its judgment upon a demurrer to a petition or motion the court does not decide upon the merits of the case, a judgment sustaining the demurrer and dismissing the action is not a bar to another proceeding for the same cause (Papworth v. Fitzgerald, 111 Ga. 54, 36 S. E. 311), yet if, in rendering the judgment on the demurrer to the previous motion to set aside the judgment iñ the claim case, the court decided the merits of the ease by sustaining all the grounds of the demurrer to the motion, the judgment operated as res adjudicata to a second motion to set aside this judgment based upon the same grounds. Kimbro v. Virginia &c. R. Co., 56 Ga. 185.

(c) The court did not err in sustaining the plea of res adjudicata to the second motion filed by the plaintiff in fi. fa. to set aside the judgment in the claim case, the grounds of the second motion being substantially the same as those of the first motion filed for the same purpose.

No. 3855. December 11, 1923. Rehearing denied January 19, 25, 1924.

Motion to set aside judgment. Before Judge J. B. Jones. Habersham superior court. March 8, 1923.

J. C. Edivards and. H. E. Edivards, for plaintiff. McMillan & Erwin, for defendant.

(d) The rulings above set out make it unnecessary to decide the other questions made in the record.

Judgment affirmed.

All the Justices concur.