Doyal v. Tommey , 1925 Ga. LEXIS 164 ( 1925 )

Hill, J.

(After stating the foregoing facts.) The Civil Code of 1910, § 5965, provides that “The judgment of a court of competent jurisdiction may be set aside by a decree in chancery, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.” And see Dodge v. Williams, 107 Ga. 410 (33 S. E. 468); Wright v. Martin, 153 Ga. 32 (111 S. E. 190). It appears from the record in this case that the defendant had filed an answer to the action brought against him, which he was prevented from prosecuting, without fault on his part, by the fraudulent representation of the plaintiff, made before the trial, that he would have the suit dismissed on account of a settlement which had been made between the parties, a copy of which appears in the record. But it is insisted by defendant that this agreement was without consideration; that the plaintiff in the present case was the father of the child which he had agreed to educate, and therefore that there was no consideration moving from the plaintiff in the present case to him. But we are of the opinion that that is beside the question here involved. The question here is, had the defendant agreed to dismiss the suit against the present plaintiff? If he had, and the plaintiff acted upon that agreement, and the defendant fraudulently went airead and prosecuted his suit to judgment notwithstanding the settlement of the case, this would be such a fraud upon the plaintiff as that he ' could have the judgment set aside on a timely motion made for that purpose. The evidence in the case, on the motion to set aside, is sufficient to authorize the trial judge to find that such an agreement had been entered into and acted upon by the parties to the ease, and that it was a fraud upon the plaintiff for the defendant afterwards to prosecute the suit to judgment in the plaintiff’s absence and without his knowledge. We are of the opinion, therefore, that the trial judge was authorized, under the pleadings and evidence, to set aside the judgment and place the ease on the calendar for trial.

Judgment affirmed.

All the Justices concur.