Union Compress Co. v. Leffler & Son , 1905 Ga. LEXIS 287 ( 1905 )

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 tb.e 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 the Civil Code, § 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.

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 Com. Co., 121 Ga. 40.

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 remittitur was returned, but before it was filed. The ground of oral objection does not appear in the record. From the argument we are led to conclude that Leffler & Son objected thereto for the reason that Rule 44 (Civil Code, § 5675) declares, “that all grounds of motion for nonsuit, in arrest of judgment, for continuance, all objections to testimony, and all exceptions to declarations must be urged and insisted upon at once; and after a decision upon one or more grounds, no others afterwards urged shall be heard by the court.” While the rule itself may be varied to prevent injustice (Paris v. Hightower, 76 Ga. 631), it does not apply to a case like the present. It was intended to avoid delay and to prevent counsel from speculating with the court by making one point, and, when that was overruled, making another, and, if that was disallowed, still another, and so on, until the movant had exhausted his objections and the patience of the judge. One motion and one. decision was to. be an end of the matter. But until there was a decision the rule did not apply so as to deprive a party of his right to amend. After there has been a ruling, the .movant is precluded by the decision, both by the operation of rule 44 and the general provision that a party is bound not only by what he has pleaded but by what he could have pleaded before the judgment was entered. So here, if the decision on the original motion in arrest had been adverse to the garnishee, he could not thereafter have urged any additional grounds therefor. If that decision had been affirmed, there would have been nothing to amend by (Hart v. Southern Ry. Co., 119 Ga. 930), and neither before nor after the remittitur was received could additional grounds have been urged for arresting the judgment. But the decision was in favor of the garnishee. When that judgment was reversed, the motion in arrest was still so far pending as to enable the garnishee to exercise any right of amendment, certainly so up to the time that the remittitur was made the judgment of the court below. So far as appears there was no objection that the amendment was too late, or that it set up a new cause of action, or that it did not allege matter entitling the garnishee to the relief prayed. The amendment was germane to the purposes of the original motion which sought to set aside the judgment against the garnishee. The grounds of the original motion were bad. Those in the amendment were not-attacked as insufficient, and should have been allowed.

Judgment reversed.

All the Justices concur.