Ingram Legrand Lumber Co. v. Burgin Lumber Co. , 191 Ga. 584 ( 1941 )

1. One not a party to a judgment can not on mere motion procure the same to be set aside.

2. A proceeding to set aside a judgment or decree, with a prayer that the petitioner be allowed to intervene as a party, is fatally defective without process.

3. A demurrer which pointed out the defects above referred to should have been sustained.

No. 13458. FEBRUARY 13, 1941. On May 18, 1940, Burgin Lumber Company, Burton Wight, and Felton Clements, presented to Judge Chester A. Byars, of the Griffin Circuit, who had held the April term of Marion superior court after the death of Judge McLaughlin, a motion or petition in which they alleged, that a verdict and judgment rendered in that court on April 24, in the case of Ingram LeGrand Lumber Company v. W. L. or Wesley McAllister and others, were collusive and should be set aside; that the suit referred to was for reformation of a timber lease; and that the verdict was in favor of the plaintiff, and the title to this timber was decreed to be in the plaintiff; and that the decree was rendered by consent of the parties, and was collusive. The prayers were that this verdict and judgment or decree be vacated and set aside, that petitioners (who alleged that they were bona fide purchasers from and creditors of Wesley McAllister) be allowed to intervene in the case, that Ingram LeGrand Lumber Company be restrained from cutting the timber; and that all parties to "said pending suit" be required to show cause why the relief prayed for should not be granted. On this motion or petition a rule nisi was issued by Judge Byars. No process was prayed for or attached.

Ingram LeGrand Lumber Company demurred to this motion or petition, on general and special grounds. Judge Byars overruled this demurrer, and error was assigned on that judgment. 1. In the brief filed by counsel for the defendants in error the proceeding which they presented to Judge Byars, and to which the demurrers were addressed, is by them characterized as constituting "simply a request that he exercise his discretionary power to vacate and set aside said consent verdict and judgment, which were still within the breast of the court;" and authorities are cited for the proposition that the trial judge is empowered, before the adjournment of the term at which the judgment was rendered, to revoke the same on mere motion when the prayer therefor does not involve consideration of the evidence. It does not appear anywhere in the record whether or not it was filed in term time and at the term at which the judgment was rendered; and counsel for the plaintiff in error cite Ohlen v. McCoy, 25 Ga. App. 528 (103 S.E. 803), in support of his insistence that this is fatal. See Tygart v.Domestic Electric Co., 151 Ga. 624 (107 S.E. 866). Assuming, however, that it was within the term, the proceeding can not, for another reason, be maintained as a motion to set aside. It was not made by one who was a party to the judgment. "The distinction between technical motions in arrest or to set aside, and independent proceedings to annual judgments for fraud, lies in the fact that a motion in arrest or to set aside is an integral part of the previous litigation, andtherefore must be between the parties thereto [italics ours]; whereas a proceeding on account of alleged fraud, brought on a petition for process and service thereof, is an independent action, not in continuance of the original proceeding." Simpson v. Bradley, 189 Ga. 316, 318 (5 S.E.2d 893).

2. Nor can the proceeding be sustained as an independent suit in equity, because there was no process, and no prayer therefor. This was fatal. Code, § 81-1313, Scarborough v. Hall,67 Ga. 576.

3. We do not find it necessary to deal with all the grounds of the demurrer. They reached both of the defects heretofore pointed out, and it was error to refuse to dismiss the proceeding.

Judgment reversed. All the Justices concur.