Williamson v. Haddock , 165 Ga. 168 ( 1927 )

Atkinson, J.

1. Where suit is brought in equity to set aside a verdict and decree for fraud, accident, or mistake, under the Civil Code (1910), §§ 5965, 5966, as applied in Neal v. Boykin, 129 Ga. 676 (59 S. E. 912, 121 Am. St. R. 237) ; Wade v. Watson, 133 Ga. 608 (66 S. E. 922) ; Wallace v. Wallace, 142 Ga. 408 (2) (83 S. E. 113) ; Giles v. Cook, 146 Ga. 436 (2) (91 S. E. 411) ; Bruce v. Neal Bank, 147 Ga. 392 (94 S. E. 241); Gulf Refining Co. v. Miller, 151 Ga. 721 (108 S. E. 25) ; Edwards v. Wall, 153 Ga. 776 (113 S. E. 190) ; Phillips v. Phillips, 163 Ga. 899 (137 S. E. 561), the petition as in equity causes may be filed under the Civil Code (1910), § 5562, either in term time or vacation, returnable to the next ensuing term commencing not less than twenty days from the date on which the petition is filed.

(a) The statutory provision (§ 5962) relating to “motions” to set aside a judgment in the same court in which it was rendered does not apply. Bruce v. Neal Bank, supra.

(b) In view of the foregoing distinction between proceedings in equity and proceedings at law, the above ruling does not conflict with the decision in Davis v. Bennett, 158 Ga. 368 (123 S. E. 11), and similar cases, in which it was held: “A judge of the superior court has no authority to entertain a motion made in vacation to set aside a judgment of that court.”

2. This was a suit in equity to set aside a verdict and decree upon the ground of fraud, and to cancel a security deed as a cloud upon the plaintiffs’ title. The effect of the verdict and decree was to nullify an alleged prior deed executed by the defendant to persons under whom the plaintiffs claimed, upon the ground that the paper was never delivered. The petition contained the following prayers: (a) That the defendants be required to show cause at a stated time and place why the verdict and decree “should not be set aside and . . be declared null and void.” (b) That “process do issue requiring” the defendants “to be and appear at the next term of this court to answer this complaint.” (c) That a verdict and decree be rendered declaring the alleged illegal verdict and decree to be null and void as having been procured through fraud, and that the alleged illegal security deed be delivered up and canceled as a cloud upon petitioners’ title. Upon presentation of the petition to the judge in vacation, it was duly sanctioned and a rule nisi issued. After issuance of the rule nisi by the judge, the petition was duly filed in the office of the clerk of the superior court, and the clerk issued a process returnable to the next term. Held: The petition being in equity to set aside the verdict and decree and cancel the alleged security deed, the fact that it contained a prayer for a rule nisi, in addition to the prayers for process and equitable relief as indicated above, would not affect the equitable character of the proceeding.

(а) The suit was not subject to dismissal on the ground that the petition was filed in vacation.

(б) This decision accords with the ruling in Nipper v. Nipper, 129 Ga. 450 (4) (59 S. E. 226).

3. “A court of equity will extend to one who is not a party to the bill the privilege of becoming a party at his own instance, when, from the case made, it sees that the ends of justice would be subserved by it.” Phillips v. Wesson, 16 Ga. 137 (5) ; Tanner v. White, 146 Ga. 338 (91 S. E. 59). In this connection see Eastmore v. Bunkley, 113 Ga. 637 (39 S. E. 105).

(a) Under the principle quoted above, a creditor of the successful defendant named in the verdict and decree which were sought to be set aside, holding a security deed which woiild lose its priority if the verdict and decree should be set aside, had such interest as would entitle him to .intervene as a party defendant in the equity suit, to resist the prayers of the petitioners to set aside the verdict and decree.

Nos. 5884, 5885. November 16, 1927.

(6) So also would the widow of the said successful defendant named in the verdict and decree (since deceased) have such interest as would entitle ' her to intervene as a party defendant in the equity case, to resist the prayers of the petitioners to set aside the verdict and decree.

4 Under application of the foregoing rulings the court did not err in allowing the-intervenors to be made parties defendant; but a reversal must result on account of the error in sustaining the motion made by the intervenors to dismiss the plaintiffs’ petition.

Judgment reversed.

All the Justices concur. W. I. Geer, for plaintiffs. C. L. Glessner and Lowrey Stone, for defendants.