Wright v. Martin , 153 Ga. 32 ( 1922 )

Hill, J.

(After stating the foregoing facts.) This case does not fall within that class in which it has been held that a motion to set aside a judgment must be based on some defect which appears on the face of the record (see Regopoulas v. State, 116 Ga. 596, 42 S. E. 1014), but it falls within the class of decisions to the effect that the judgment of a court of competent jurisdiction may be set aside by the court which rendered it, for fraud practiced on the defendant and the court. Hnder the act establishing the city court of Eloyd county, that court has authority to grant new trials in all cases, both civil and criminal, tried therein, under the same rules and regulations which govern motions for new trial in the superior courts, so far as applicable. Acts 1882-3 p. 535, sec. 19. In Ford v. Clark, 129 Ga. 292 (58 S. E. 818), it was held: “A judgment founded on a verdict obtained by fraud practiced on the defendant and the court may be set aside, and the original case reinstated, in a court of law, with proper pleadings, and with all the parties at interest as parties to the motion; the motion being made at the term of the court at which the verdict and judgment were entered, and the movant showing that he was not in laches, had a meritorious defense, and announcing ready for an instant trial.” And see Moore v. Moore, 139 Ga. 597 (77 S. E. 820); Albright v. American Central Ins. Co., 147 Ga. 492 (94 S. E. 561); Seagraves v. Powell Co., 143 Ga. 572 (3), 579 (85 S. E. 760). The Civil Code (1910), § 5957, provides that a motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set it aside may be made at any time within the statute of-limitations. The ease of Exchange Bank of Macon v. Elkan, 72 Ga. 197, is cited by the plaintiff in error as being controlling here; but the facts of that case are distinguishable from the facts of the case at bar. In that case no answer had been filed, and no name of counsel for the defense had been marked on the docket; and while in that case it appeared that an “ understanding ” was had between counsel that the case should not be heard until they had been advised, which agreement was not in writing, and although the court held in that case that no agreement of counsel is binding unless in writing, yet the judgment of the lower court, which ordered that the judgment in that case be opened and that the defendant be allowed to plead, was affirmed. In the present case an answer had been filed, setting up what the defendant claimed was a perfect defense, and alleging that on the day the plaintiff took judgment in the absence of the defendant, her child and her counsel, who had absented himself on account of the agreement with counsel for the plaintiff to continue the case, the answer was not read by the plaintiff on the trial of the case. Indeed, according to the affidavit of the clerk of the court, the plaintiff’s counsel, while securing the papers from the clerk’s office for trial, stated to the clerk that he did not need the answer; and so far as the record discloses, the court was not advised of the fact that an answer had been filed, or what the contents of the answer were, or that an agreement had been entered into between counsel touching the continuance of the case. We are of the opinion that the allegations of the petition in the present case, and the proof in support thereof, although conflicting on the question of fraud, fall within the rule laid down in the Ford case (supra); and consequently that the court did not err in overruling the motion to dismiss the motion to set aside the judgment in the habeas-corpus case, and in ordering that the motion to set aside the judgment be sustained.

The contention that a motion to set aside a judgment in a habeas-corpus proceeding will not lie, is without merit.

Judgment affirmed.

All the Justices concur.