Howell v. Ware & Harper , 133 Ga. 674 ( 1909 )

Lumpkin, J.

(After stating the facts.) The petition was not demurrable on the ground that it set forth no cause of action or ground for relief. Taking its allegations as true, as must be done on the hearing of a demurrer, a judgment by default was rendered against the defendant in the former action, the petitioner in the present case, in a city court, to which suit he had a complete defense, which was not interposed because of the sudden illness of his attorney, entirely incapacitating him for attention to business, and without the knowledge of the defendant in the action, and without fault on his part. -If there was in fact laches on the part of the defendant or his attorney, it does not appear on the face of the petition. The mere statement that the petitioner was free from fault in failing to make and file his defense, and if there was any fault on the part of any one it was on the part of his attorney, was not an admission of laches on the part of any one, especially when coupled with the direct allegation that the attorney was taken suddenly and seriously ill immediately after he was employed, and was -confined to his bed and incapacitated for the discharge of professional duties, and that petitioner was absent without knowledge of this situation.

The only remaining question arising on the demurrer is whether the equitable petition filed in the superior court, which alone has equitable jurisdiction, for the purpose of enjoining a judgment and obtaining relief in regard thereto, should have been dismissed on the ground that there was an adequate remedy at law by a motion to vacate and set aside the judgment in the city court, where it was rendered. There was no special demurrer attacking the sufficiency of either the allegations or prayers1 of the petition. The only question raised was that just stated. Section 3987 of the Civil Code is .a codification of the law previously existing, that “the judgment of a court of competent jurisdiction may be set aside, by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the petitioner.” In 1 Black on Judgments (2d ed.), §338, it is said: “In some of the States, it is held that the illness of a party, occurring on or continuing through the day of trial, and so severe as to confine him to his house and prevent him from attending the court and trying his suit, is such an ‘unavoidable casualty or misfortune’ as entitles him to have the judgment against him set aside.” In this State it has been held that “a motion to vacate a judgment by default, on the ground that defendant was sick when it was rendered, and could not put in his plea, was properly overruled, no reason being shown why the plea was not’ filed before the trial term.” Cannon v. Harrold, Johnson & Co., 61 Ga. 158. In 1 Black on Judgments (2d ed.), §339, it is said: “It is held by several respectable authorities that the illness of defendant’s counsel, so severe as to prevent him from appearing and trying the case, is a good ground for vacating the judgment. This, however, has been fairly denied. It seems reasonable to hold that such an excuse would not be sufficient if the party had any opportune to retain other counsel, or otherwise to escape the default or verdict. But if the attorney’s illness was so sudden that there was no time to employ other counsel, or if it was unknown to the defendant, or he was unable to act in the matter, or no one was present to ask for a continuance, it would be manifestly unjust to visit the misfortune upon the defendant who was guilty of no carelessness or lack of diligence.” It will be seen that where sickness is held to be a sufficient ground for setting aside a judgment, it is classified with accident and misfortune, as to which our code recognizes equitable jurisdiction as applying, unless the remedy be denied on account of laches. Clifton v. Livor, 24 Ga. 91; McCall v. Miller, 120 Ga. 262, 266 (47 S. E. 920). In some of the States a practice prevails by which it is necessary to bring a direct action in the form of a regular suit, with plenary proceedings, in which the relief demanded is the annulment of the judgment complained of. In others a motion in the court where the judgment was rendered, with notice to the adverse party, is generally employed. In this State the superior court has power to administer both legal and equitable remedies. If the ground for proceeding falls within the scope of equitable cognizance, and the superior court properly takes jurisdiction, the action will not necessarily be dismissed, even if there might have been a motion .to vacate or set aside the judgment made in the city court. It is by no means certain that as complete relief could have been had in that court as in the superior court. It was alleged that the time for opening the default had elapsed, that the judgment now attacked could be used in evidence in another case, and the execution issued would be levied on the petitioner's property, and he prayed for au injunction. Whether or not, under the facts, he was entitled to the relief sought is a different question; but we can not hold that the petition was subject to demurrer on any of the grounds stated. This ruling does not conflict with that in Johnson v. Driver, 108 Ga. 595 (34 S. E. 158)., where there was a complete legal remedy by writ of certiorari, and the complainant had full opportunity to avail himself of that remedy. Besides, the allegation as to the defense was declared to be insufficient.

We do not think it necessary to the adjudication of this case to consider the different rulings as to when a motion to set aside a judgment will lie in this State, or to seek to reconcile any apparent want of harmony among them. We decide the present case on its facts.

An injunction was denied on the evidence. The bill of exceptions recites that the hearing was on April 7; the order in the record is dated March 7. The bill of exceptions recites that it was tendered in twenty days. The judge's certificate was dated May 5. If the tender be treated as in time, there was no abuse of discretion in the denial of the interlocutory injunction.

Judgment reversed.

All the Justices concur.