Ford v. Clark , 129 Ga. 292 ( 1907 )

Evans, J.

(After stating the facts.)

1. There is no doubt that the judgment of a court of competent jurisdiction may be set aside, by the court which rendered. it, for fraud and irregularity. Mobley v. Mobley, 9 Ga. 247. An examination of previous adjudications of this court discloses some apparent conflict as to the proper procedure. In Dugan v. McGlaun, 60 Ga. 353, it was said that a judgment may be vacated for fraud, accident, or mistake, unmixed with the negligence or fault of the complaining party, by decree in chancery, or in a court of law with appropriate pleadings, but can not be set aside on either of those grounds on motion. It has been repeatedly held by this court that a motion to set aside a judgment must be based on some defect which appears on the face of the record. Regopoulas v. State, 116 Ga. 596 (42 S. E. 1014), and cit. But not all motions to set aside judgments are necessarily based on matter appearing on the face of the record. For example, any judgment or verdict entered up in consequence of perjury may be set aside “upon motion and notice to the adverse party.” Civil Code, §5366. Here we find clear recognition of the right to set-aside a judgment, on motion, for a defect not apparent on the record. In Mobley v. Mobley, 9 Ga. 244, there was a motion made-in the court of ordinary to set aside a judgment granting letters-of dismission to an administrator, on the ground of fraud. Objection was made to the evidence offered to -prove the fraud alleged, on the ground “that fraudulent acts, however flagrant,, could not be given in evidence” in a motion to set aside a judgment. ‘ In the course of the discussion of this point, Nisbet, J.,. said: “Fraud in procuring a judgment is ground for its reversal, both at law and in equity; it is an irregularity which vacates-it. It may be inquired into by the court which rendered the judgment.” At common law a motion to set aside a judgment could be predicated upon any irregularity in the judgment, whether appearing in the face of the record or not. Judge McCay-said, in Fannin v. Durdin, 54 Ga. 479, that the provisions of our code were merely declaratory of the common law; but his remarks were said to be obiter dicta in the case of Begopoulas, supra. Be that as it may, we find that, as early as the case cited from 9 Ga., it was considered proper procedure, to vacate a judgment procured by fraud, to file a petition addressed to the court wherein the judgment was rendered, distinctly alleging the specific fraud, and praying a rule against all the- parties interested, to show cause-why the judgment should not be set aside. When -the rule was served, the court, on the day therein appointed, would proceed to hear evidence relating to the alleged fraud. This practice was approved in Turner v. Jordan, 67 Ga. 604. In the late case of Union Compress Co. v. Leffler, 122 Ga. 640 (50 S. E. 483), it was held: “In a proper proceeding by petition, with rule nisi or process, and service upon the necessary parties, the courts of this State may exercise the jurisdiction, which obtained at common law, to set aside judgments for irregularities not appearing on the face of the record.” See also Ayer v. James, 120 Ga. 578 (48 S. E. 154). Whether such proceeding be technically a motion to set aside a judgment, or denominated by other appropriate-name, it is certainly a proceeding in a court of law, and it would be immaterial to the parties haled into court whether they were cited to appear by a rule issued by the judge, or process in the name of the judge, issued by the cleric.

2. The movant submitted evidence to sustain the truth of the grounds of his motion. He proved that he had a meritorious defense to the ejectment suit, viz., a good prescriptive title. His motion was made at the trial term of the ejectment suit, and he offered instantly to plead and to announce ready for trial. The plaintiff in ejectment would not have been delayed, for he could not have had a trial at an earlier term of the court. The movant was diligent, in that he moved instantly upon knowledge that the plaintiff had taken judgment against him in violation of his promise to dismiss the suit. An application to vacate a verdict and judgment is addressed to the sound legal discretion of' the judge; and the court did not err, under the evidence submitted, in setting aside the verdict and judgment, and in reinstating the case.

Judgment affirmed.

Alldhe Justices concur.