McCarthy v. Holloway , 245 Ga. 710 ( 1980 )

Clarke, Justice.

Appellee is a holder of a default judgment entered by the trial court upon an alleged ex delicto cause of action. The trial judge granted and the judgment included a sum of money as attorney fees. Appellant first filed a motion for new trial or, in the alternative, motion to set aside the default judgment, which motion was denied and not appealed. Following this, appellant filed a complaint in equity attacking the judgment on the grounds that it was secured by fraud and that a portion of the judgment was void upon its. face because of the award of attorney fees in an ex delicto action. The Court of Appeals reversed the trial court’s grant of summary judgment to appellee and directed that summary judgment be entered in favor of appellant insofar as attorney fees are concerned. We affirm.

This court is concerned with the following circumstances: The issue of validity of the portion of the judgment awarding attorney fees could have been but was not included in the motion for new trial or in the alternative motion to set aside the judgment. Does this fact, therefore, render the issue res judicata so that it cannot be a valid ground to set aside a judgment by complaint in equity?

In causes of action arising ex contractu, the court may, without a jury, hear evidence and award damages including attorney fees. Code Ann. § 81A-155 (a). Georgia Farm Bureau Ins. Co. v. Williamson, 124 Ga. App. 549 (4) (184 SE2d 665) (1971). In causes of action arising ex delicto, damages including attorney fees can only be awarded by a jury. Code Ann. § 81A-155 (a). When a court purports to render a judgment beyond its jurisdiction, the judgment is void. Canal Ins. Co. v. Cambron, 240 Ga. 708 (242 SE2d 32) (1978). It has been held that a judgment rendered by the court when a jury verdict is required by statute is void and a mere nullity. Greene v. Greene, 76 Ga. App. 225 (45 SE2d 713) (1947). When a judgment or a portion thereof is void on its face, it may be attacked in any court by any person. Code Ann. § 81A-160 (a). Canal Ins. Co. v. Cambron, supra. When attacking a judgment, a party is generally required to raise any issue which could be raised in his first attack. Code Ann. § 110-501. However, this rule does not obtain in instances in which the judgment or a portion of it is void and such voidness appears on the face, of the judgment. This class of judgments is not susceptible to statutes of limitation and there is no bar, estoppel or limitation as to when this type of judgment may be attacked. Wasden v. Rusco Industries, Inc., 233 Ga. 439, 445 (211 SE2d 733) (1975). An exception to the above statement is that Code Ann. § 81 A-160(f) provides that a judgment void on its face for reasons other than lack of jurisdiction may not be attacked after the passage of three years. The instant action was brought within three years of the judgment complained of. If a judgment is void on its face, it is a mere nullity. It is as though it does not exist. The failure to attack a non-entity at a previous opportunity cannot have the effect of breathing life into it.

Submitted January 16, 1980 Decided April 8, 1980 Rehearings denied April 22 and April 29, 1980. Jay M. Sawilowsky, for appellant. Vernon J. Neely, for appellee.

Judgment affirmed.

All the Justices concur, except Undercofler, C. J., Hill and Marshall, JJ., who dissent.