Smith v. Knowles ( 1913 )

Kussell, J.

(After stating the foregoing facts.)

We need say nothing more, as to the complaint that the plaintiff’s attorney signed the judgment by default, than that the judgment was signed by the presiding judge. That is the important point, and the question as to whether the plaintiff’s attorney did or did not sign it is wholly immaterial. The signature of the plaintiff’s attorney may be treated as surplusage, but it certainly can not, in any respect, vitiate the judgment. The court did not err in overruling the motion to set aside the judgment, upon 'any of the grounds stated therein or in the amendment thereto.

1. There is no merit in the objection that the defendant was served less than fifteen days prior to the return term of the court; and, this being true, the second ground of the motion (in which it is insisted'that the term'at which the judgment was rendered was only the return term), of course, falls with the first ground. In suits upon promissory notes in the city court of Floyd county the petition and process need only be served ten daj^s before the appearance term of court. Section 8 of the act «creating that court (Acts 1882-3, p. 538) provides that “in civil cases the original petition shall be filed in the clerk’s office at least fifteen days before the term at which it is returnable, and if filed within fifteen days the clerk shall make the same returnable to the next succeeding term thereafter. The service of the process shall be made ten days before the term to which the same is made returnable.” It is insisted that the clerk could not make this suit returnable to the June term, 1912, because the petition was not filed 15 days before the first Monday in June. The point made is that, as the petition and process were not served’ as much as fifteen' days before the first Monday in June, 1912, the case w'as not properly returnable until the September term 1912. If the petition was filed fifteen days before the first Monday in June, 1912 (and this is not denied), ten days’ service was all that was necessary; and this requirement of the law was fulfilled, as appears from the movant’s own petition to set aside the judgment. Consequently the case was in default at the June term, 1912, and stood for trial in September, 1912, the term at which the judgment by default was entered. The act referred to provides that “ordinary suits shall stand for trial at the second term, as in the superior court.”

2. The only remaining ground of the motion, then, is the insistence that the judgment be set aside because it included attorney’s fees. As to this point, it seems that the plaintiff’s attorneys discovered this defect before the movant did, and upon their motion the court corrected the judgment in this respect, before his attention was called thereto by the movant. Upon the plaintiff’s motion the presiding judge, on November 26, 1912, directed that the attorney’s fees be stricken from the judgment; and the movant’s amendment, asking that the judgment be set aside upon that ground, was not allowed until December 16 thereafter. However, this is immaterial, as, under the ruling of the Supreme Court in Shahan v. Myers, 130 Ga. 724 (61 S. E. 673), the court could have ordered the attorney’s fees stricken from the judgment, or written off, and should not, unless the judgment was void, have set aside the judgment as a whole, even if the attention of the court had been for the first time directed to this error in the judgment by the movant himself. A judgment valid in other respects will not be set aside as void because it adjudges that the plaintiff recover, in addition to the principal sum and interest, a named amount as attorney’s fees. Shahan v. Myers, supra. A general motion to set aside a judgment as a whole, upon the ground that the judgment is void, when in fact it is only in part void, is so much too broad that it should be overruled; and especially is this true when, prior to the motion to set aside, the only error in the judgment has been corrected. As was said by Judge Lumpkin in Latimer v. Sweat, 125 Ga. 477: “The entire judgment was not void, and .therefore the motion to set it aside as a whole failed.”

The defendant in error asks the award of damages as for a frivolous appeal, and this writ of error is to our mind so wholly urn necessary and so palpably without merit (when the learning anc] ability of the counsel who prosecuted it are considered) that we can only attribute it to a desire for delay; and damages are accordingly awarded. Judgment affirmed, with damages.