Thomason v. Thompson , 129 Ga. 440 ( 1907 )

Evans, P. J.

1. The first ground of the demurrer disputes the jurisdiction of the court, and in discussing its merits we will consider the petition as if all the amendments had been allowed. Many allegations of the proffered amendments referred to subject-matters which bear no relation to the main relief prayed by the plaintiff. The ultimate purpose of the plaintiff is to subject the land in controversy to the lien of his judgment against H. E. Thompson. The first step to enforce the lien of this judgment was to cause the execution issued thereon to be levied on the land, to which levy Mrs. II. C. Thompson interposed her statutory claim. The apparent legal title is in her, and is based on the sheriff’s sale, which divested the lien of the plaintiff’s judgment, and is fortified by the judgment distributing the proceeds arising from ihe sale of the land by the sheriff. It is clear that unless the plaintiff is entitled to set aside the sheriff’s deed and the judgment in the money-rule case, the title of the claimant must prevail. The filing by the plaintiff of an equitable petition in aid of his levy is a recognition of this fact. It requires but a glance at the allegations and prayers of the petition and amendments to see that the Eulton county defendants, H. C. Thompson and wife, are the only defendants against whom substantial relief is prayed. These defendants demurred to the jurisdiction of the superior court of Greene county, because of their residence in Eulton county. The constitution of this State requires that equity cases shall- be tried in the county where a defendant resides against whom substantial relief is prayed. Civil Code, §5871. Even before this provision was incorporated in the fundamental law, it was held, that, in analogy to the rule at law, equity causes must be brought in the county where a defendant resides against whom substantial relief is prayed, but that the rule does not apply to bills ancillary to suits at law; that in so far as such a bill seeks no relief outside of the suit pending, the county where the suit is pending has jurisdiction, and the constitutional mandate in this respect is to be interpreted in the light of the history of the law on that subject in this State prior to its first appearance in the constitutions of this State. Carswell v. Macon Mfg. Co., 38 Ga. 403. The constitutional guaranty that a person may not be sued outside of the county of his residence is a personal privilege, which may be waived by him. A defendant may waive the jurisdiction of the court as to his person by appearance and pleading. vSo, a litigant, by instituting a suit in another county, impliedly and necessarily consents that the forum to which he applies for relief may adjudicate all matters between him and his adversary which are germane to the litigation. This principle rests on the idea that the plaintiff, by voluntarily instituting his suit, gives the court of the county where it is so instituted jurisdiction of his person sufficient to answer all the ends of justice respecting the suit originally instituted. Caswell v. Bunch, 77 Ga. 504. The interposition of a claim is permissive and not compulsory. Walden v. Walden, 128 Ga. 131. It would be immaterial, so far as venue is concerned, whether the relief of the adversary party be administered through pleadings in the original ease, or by ancillarjr suit. Moore v. Medlock, 101 Ga. 94. The waiver of jurisdiction as to the non-resident’s person, however, is limited to Telief germane to and involved in the action which he starts. In the case of Merchants Bank v. Davis, 3 Ga. 112, an execution owned by persons residing in one county was levied on land in another, and a claim was interposed. It was there held that the superior court of the county where the land lies has jurisdiction over plaintiffs residing out of that county, in equity, in consequence of the pendency of the claim, in a proper case made. So, also, when a claim is filed to the levy of a fi. fa., the same right exists in the plaintiff in fi. fa. to file equitable proceedings in support of his levy, and enforce all equities pertaining to his rights as such judgment creditor, in the county where the claim is pending. Dawson v. Equitable Mortgage Co., 109 Ga. 389. Therefore, if the matters alleged against H. C. Thompson and wife, and the relief prayed against them, be germane to the issue involved in the claim case, the superior court of Greene county has jurisdiction of the present case. The paramount issue in a claim case is whether or not the property levied on is subject to the fi. fa. Shumate v. Mc-Lendon, 128 Ga. 526. The claimant’s title is derived from II. C. Thompson, who gets his title from the judgment debtor of the plaintiff. The plaintiff wishes to set aside this title as fraudulent. He could do this by appropriate pleadings in the claim case. If in the claim case, why not by ancillary suit? In either proceeding it would be necessary to make Ii. C. Thompson a party. But he can not object to the jurisdiction of the court, if he is a necessary party to obtaining the relief against his wife and the court has jurisdiction as to her so far as the issues in the claim case are involved. We therefore hold that the filing of the claim was such a pending proceeding as conferred jurisdiction on the superior court of Greene county to entertain the petition in aid of the levy of the plaintiffs fi. fa.

2. The ground upon which the plaintiff relies to set aside the sheriff’s deed to H. C. Thompson is the invalidity of the process under which the land was sold. There is no pretense that any irregularity entered into the various stages of the proceedings which eventuated in the sale. Fire sale is said to be void solely because the mortgage on which the judgment of foreclosure is founded is without consideration and fraudulent. The plaintiff is held off from an immediate attack on the sheriff’s deed, by a judgment upon the very issue which plaintiffs in fi. fa. caused to have made in the rule case to distribute the money arising from the sale of the land by the sheriff. When the land was sold by the sheriff, the executors of Thompson demanded that the proceeds be applied to their fi. fa. Upon the sheriff’s refusal to pay over the money to them, they brought a rule against him. The sheriff answered, and H. C. Thompson intervened and claimed the money on his mortgage fi. fa. The pleadings distinctly and sharply made the issue that the apparent superiority of the mortgage lien must yield to the junior common-law judgment, because the mortgage was without consideration; the parties thereto were uncle and nephew; it was fraudulent, and made for the sole purpose of defeating the lien of plaintiff’s judgment. This was the only issue submitted to the jury, and they found in favor of the validity of the mortgage, and judgment was accordingly entered up. This judgment estops the plaintiff from raising for the second time the identical matter therein decided. To avoid any estoppel, the plaintiff seeks to set aside this judgment as one procured by perjury and fraud practiced on the court, the fraud alleged being that the mortgagor falsely and fraudulently represented to the court the bona fides of his mortgage, and with the aid of perjured testimony procured an unconscionable advantage.

Fraud is the arch enemy of equity, and a court of equity will relieve against a judgment obtained by imposition. Civil Code, §§4032, 5370. Thus, when a litigant keeps the opposite party from court, equity will relieve against the judgment obtained in his absence (Dodge v. Williams, 107 Ga. 410; Bigham v. Kistler, 114 Ga. 457); or, where one party fraudulently induces his adversary to withdraw his defense, the judgment will be set aside. Markham v. Angier, 57 Ga. 43. The fraud in eases of this kind is collateral and extrinsic of the judgment. The great current of authority limits the frauds for which a bill to set aside a judgment between the same parties, rendered by a court of competent jurisdiction, will be sustained, to those matters which are extrinsic and collateral to the matter tried. U. S. v. Throckmorton, 98 U. S. 61; Pico v. Cohn, 91 Cal. 129; Camp v. Ward, 69 Vt. 286; Friese v. Hummel, 26 Ore. 145; 23 Cyc. 1026, and citations. In the Throckmorton case it was said that the mischief of retrying every case in which the judgment or decree was rendered on false testimony, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.

The argument of the plaintiff in error would seem to deny that the principle obtains in Georgia, which is so generally recognized by courts elsewhere, that equity will not set aside a judgment because it was founded on a fraudulent instrument or perjured testimony, or for any matter which was actually presented and considered in the judgment assailed. The argument is rested solely on one case — Griffin v. Sketoe, 30 Ga. 300. It appears in that case that one Williams brought complaint for land against Sketoe, which resulted in a verdict for the defendant. Williams renewed his ejectment suit, and, while it was pending, died. Griffin was appointed his administrator, and, to avoid the estoppel of the former judgment, brought an equitable petition to set it aside on the ground of fraud and perjury. The fraud consisted in predicating his defense of seven years possession upon a deed which had been fraudulently antedated, and offering the subscribing witness thereto, who falsely testified that the deed was executed on the date stated in the instrument. The court held that a judgment obtained under these circumstances was fraudulent, and would be annulled. In the course of the discussion, Lyon, J., said, in substance, that the issue in the trial was title to the whole lot; the defendant was in actual possession of a small part of the lot, and relied upon the falsely-dated'deed, to extend that possession to the whole lot; a verdict for the defendant could not have been rendered without the deed, and was therefore dependent on it. As we understand it, this decision, at furthest, decides only that a judgment will be set aside when the prevailing party practices a fraud on the court in proving his case by means of a forged or fraudulent document. The principle enunciated may not be in exact accord with the rule on the subject which prevails in other jurisdictions. But there is a wide distinction between the case at bar and that of Griffin v. Sketoe. In the trial which resulted in the judgment under discussion in the present case, the fraud was distinctly in issue; in fact was the only issue, — -squarely made in the pleadings, expressly included in the verdict, and solemnly adjudicated in the judgment. In Griffin v. Sketoe no issue was made as to the antedating of the deed; the fraud of the prevailing party was not an issue; his fraud consisted in the use of a paper, the crookedness of which he successfully concealed from the court and his adversary. The. reason for setting aside the verdict must have been that a new trial should be had so that the integrity of the defendant’s deed could be made an issue. We dare say that if the true date of the deed had been in issue in the former trial, the judgment would not have been set aside, and another trial ordered because of the discovery of new evidence. Even in case of timely and prompt motion-for new trial our adjudications are numerous, and the statute is plain, that a new trial will not be granted because of newly-discovered evidence cumulative and impeaching in its nature. To set aside a verdict and judgment for fraud, where the particular fraud was in issue, because of the discovery of additional evidence to prove it, would deprive a judicial finality — a judgment — of its inherent and distinguishing characteristic. The same reason for annulling a judgment because of the discovery of new evidence to establish the fraud would apply to the unfortunate litigant who had been unjustly charged with fraud, so as to give him another opportunity to raise anew the issue of fraud, on newly discovered evidence of his innocence. Of course such could not be done. Interest reipublicse ut sit finis litium.

But it is said that the newly-discovered evidence of the fraud oí H. C. Thompson is his written admission, and that on demurrer the genuineness of the paper is confessed. For .the purpose of the demurrer, the authenticity of what is called in the brief “the certificate of rascality” is admitted. Wherein does this circumstance affect the rule? The rationale of the rule against reopening an issue rests upon the maxim just quoted and upon the other maxim that one should not be twice vexed with the same suit. There may be a complete reply to the writing relied on to estab-* lish the fraud; it may be entirely explained away; its genuineness may be denied. It is but an admission, and, so. far as its legal effect goes, it stands in no more favored position than if it were verbal. Suppose the allegation had been that II. C. Thompson had admitted what is contained in the writing, in the presence of four or five reputable witnesses, would the rule be different? "We therefore will not extend the case of Griffin v. Sketoe to a .case where the newly-discovered evidence of the fraud relied on to annul a judgment was the same fraud which was made an issue in the trial which eventuated in the judgment assailed.

We have not adverted to the alleged perjury, because the statute provides that a judgment obtained by perjury shall not be set aside on that account, unless the person charged with the perjury has been duly convicted. Civil Code, §5366.

Wre have thus reached the conclusion that the plaintiff is estopped by the judgment in the monej^-rule case from attacking the validity of the mortgage. His case was dependent upon evading the estoppel of this judgment. It is therefore unnecessary to discuss the other1 features of the case raised by the demurrer or the answers.

Judgment affirmed.

All the Justices concur, except Holden, J., who did not preside.