Sixth Street Corp. v. City Stores Co. , 229 Ga. 99 ( 1972 )

Gunter, Justice,

dissenting. This appeal results from a judgment below dismissing the appellant’s complaint which sought to set aside and enjoin the enforcement of a judgment against the appellant which had previously been obtained by the appellee against the appellant in another court.

The present complaint alleged that the judgment should be set aside and its enforcement enjoined for one reason only: The return of service in the suit in which judgment was obtained showed proper service on appellant’s agent by the service officer, but the appellant’s agent was not in fact served.

I am of the opinion that the trial court properly dismissed this complaint. It failed to state a claim for which relief can be granted.

The Civil Practice Act (Rule 60) prescribes how parties can obtain relief from judgments. This rule provides that a judgment void on its face may be attacked in any court by any person, but that is not the situation here. The judgment attacked in this case is not void on its face.

This rule then provides that in all other instances, judgments are subject to attack only by a direct proceeding that is brought by three prescribed methods: By motion for new trial, by motion to set aside the judgment, or by a complaint in equity.

The present complaint under review used the complaint-in-equity method.

Subsection (e) provides that a complaint in equity ..may be brought to set aside a judgment for fraud, accident or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.

I interpret this language to mean that the complaint in equity can only be brought successfully by alleging fraud, accident or mistake, or the acts of the adverse party; unless the complaint charges the adverse party with one of these enumerated sins, then the complaint in equity fails to state a claim.

The present complaint does not charge the adverse party with any of these; it merely charges that even though the court records show that the service officer served the appellant, the service officer did not in fact serve the appellant.

It seems to me that in this situation the appellant is relegated, under this rule, to filing a motion to set aside this judgment that it contends to be void because of the failure of the service officer to properly serve the appellant; and a motion to set aside the judgment must be brought in the court that rendered the judgment sought to be set aside.

The appellant also has a cause of action against the service officer if the service officer did not in fact serve the appellant but made a return of service to the effect that he did do so.

I would affirm the judgment of the trial court.

I respectfully dissent.