Raines v. Lane , 198 Ga. 217 ( 1944 )

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 Building 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 the county and presented his case without any objection to the jurisdiction. Poss v. Norris, 197 Ga. 513 (2) (29 S.E.2d 705), and cit.

No. 14924. SEPTEMBER 7, 1944. 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 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 boundary line in dispute. The motion to set aside further attacks the consent judgment based on such written agreement and the report of the surveyor made in compliance therewith, on the alleged ground that no notice had been given the plaintiffs of the time when the survey would be made, although it is not alleged that the written agreement so required; and the testimony did in fact show that the attorney for the plaintiffs was notified at least on the first day of the survey, which consumed three days. There was no allegation of proof showing why the plaintiffs, by the exercise of proper diligence, could not have ascertained the facts complained of in the motion before the rendition of the consent judgment. Some elaboration of the first division of the syllabus would seem proper. Under the pleadings and undisputed testimony, the judgment of the superior court dismissing the petition was demanded. Although the motion in attacking the consent judgment sets forth a criticism of the method of technical procedure taken by the surveyor in reaching the conclusion arrived at by him in determining the disputed boundary, in that he failed to go over into another county to obtain his bearings, it is not alleged that the written agreement contained any provision that such a procedure should be resorted to; nor do the plaintiffs show by their testimony how or wherein such alleged procedure was in fact necessary to a correct determination of the boundary line in dispute. All that the motion shows is that it had been orally understood before the signing of the agreement that such method of procedure was to be followed by the surveyor, but even the existence of such a prior oral understanding was not proved to have been agreed upon as mandatory upon the surveyor in the performance of the duty assigned him.

Although the motion further attacks the consent judgment by alleging that the surveyor had failed to notify the plaintiffs of the time when the line was to be run, here too, it is not alleged that the written agreement provided for any such notice; and it does appear without dispute from the evidence that in point of fact the plaintiffs' counsel was notified at least on the first day of the survey, whose progress consumed three days. Especially was the action of the judge not only authorized but demanded, for the additional reason that the plaintiffs fail to set forth any reason why they did not know or could not have ascertained the grounds of their complaint by proper diligence on their part prior to the time that the consent decree establishing the disputed land line was made the consent judgment of the court; and fail to show the practice of any fraud by the defendant in procuring their consent to the decree as rendered. See Code, § 120-710; Elliott v. Elliott, 184 Ga. 417, 419 (191 S.E. 465); Hightower v.Williams, 104 Ga. 608, 610 (30 S.E. 862); Gray v. GeorgiaLoan Trust Co., 166 Ga. 445, 450 (143 S.E. 501);Beddingfield v. Old National Bank Trust Co., 175 Ga. 172,187 (165 S.E. 61); Rawleigh Co. v. Seagraves, 178 Ga. 459 (173 S.E. 167).

Judgment affirmed. All the Justices concur.