Thomas v. Bloodworth

Stephens, J.

1. A motion to set aside a judgment, on the ground that a confession of judgment on which the judgment was rendered was obtained by fraud, failed to show such, fraud as would authorize the setting aside Of the judgment, where the only alleged fraud consisted, not in the procurement of the execution of the document that constituted the confession of judgment, but in the suit, itself, which was one to recover for the defendant’s conversion of money assigned to the plaintiff under a salary assignment, as having been based upon fraudulent transactions, such as that the assignment was made after the date of the alleged conversion, that the transaction was a loan, that the plaintiff had not credited the defendant with payments made upon the indebtedness, and that no copy of the assignment was attached as an exhibit to the petition, and also in the plaintiff’s representing to the court as true the facts alleged in the petition.

2. Matters purely defensive and going in denial of the plaintiff’s right to recover do not afford grounds to set aside a judgment. It is therefore no ground for the defendant’s motion to set aside the judgment against him that the indebtedness sued on was discharged by bankruptcy.

3. “No confession of judgment shall be entered up . . unless the cause has been regularly sued out and docketed as in other cases.” Civil Code (1910), § 5954. An allegation, in a motion to set aside a judgment rendered on a confession of judgment, that “at the time said confession was entered” the suit had not been docketed as provided in section 5954 of the Civil Code of 1910, constitutes ground for setting aside the judgment.

4. The affidavit to the petition for certiorari met the requirements of section 5184 of the Civil Code (1910).

Decided August 27, 1931. Adhered to on rehearing, October 3, 1931. E. F. Goodrum, J. L. B. Boyd, V. K. Meador, for plaintiff. L. U. Bloodworth, B. B. Feagin, B. B. Jackson, for defendant.

5. The dwmuTcr Ui (he defendant's motion to set aside the judgment was improperly sustained, and the judge oí the superior court erred in refusing to sanction the defendant’s petition for certiorari.

Judgment reversed.

J enlcins, P. J., and Bell, J., concur.