Giles v. Cook , 146 Ga. 436 ( 1917 )

Evans, P. J.

1. It is apparent that in the prayer for process the petitioner inadvertently substituted Macon for Taylor county. The petition was addressed to the superior court of Taylor county. It was a suit in that county. The judgment excepted to was rendered at an interlocutory hearing anterior to the appearance term. The court allowed an amendment substituting the word “Taylor” for “Macon” in the prayer for process, and also allowed the second original to be amended by striking the words “et al.,” and putting in the name of one of the transferees of the execution; and no exception is taken to these orders. The defendants were not before the court at chambers by virtue of the process, but by jirtue of'the order of the judge which directed a copy of the petition and order to be served on them. The irregularity of the process was really not before the court on the interlocutory hearing. The defendants were actually served with the petition and order, and resisted the grant of an interlocutory injunction on its merits, and the irregularities in the matter of service and process did not deprive the court of jurisdiction to pass on the grant or refusal of a pendentelite injunction.

2. The jurisdiction of courts of equity to vacate judgments obtained by fraud is too well recognized to require discussion. Civil Code (1910), § 5965. Judgments which may be vacated in equity on the ground of fraud are not confined to judgments rendered by the superior court. It has been held that a judgment of the Supreme Court may be set aside in equity, for fraud, in a proper case. Wade v. Watson, 133 Ga. 608 (66 S. E. 922). When the plaintiff and his tenant made an accord and satisfaction, there was no case in court. The plaintiff had a right to rely upon the tenant’s acquiescence in the settlement until he had some contrary notice. It would be a fraud on the part of the tenant to after-wards file a counter-affidavit, converting the landlord’s process, which -had become extinguished as process because of the settlement, into mesne process so as to form an issue to be tried by the court, without giving him some notice of that fact. If this was true, as alleged by the landlord, he presented a case for equitable interference with the judgment, and its enforcement by an execution based upon it, at the instance of an assignee with notice.

3. There was a sharp conflict of evidence on many of the issues of fact presented by the plaintiff’s petition. There was evidence to support the allegations of the plaintiff’s complaint, and the trial judge did not abuse his discretion in preserving the status until these issues of fact could be determined by a jury.

Judgment affirmed.

All the Justices concur, except Gilbert, J., disqualified.