Opinion
17542.
SUBMITTED JULY 10, 1951.
DECIDED SEPTEMBER 12, 1951.
Equitable petition. Before Judge Vaughn. DeKalb Superior Court. May 18, 1951.
Carl T. Hudgins, for plaintiffs in error.
Robert T. Speer, contra.
1. "A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form." Code, § 110-705.
2. The motion to vacate and set aside was not based upon a meritorious reason and should have been denied.
No. 17542. SUBMITTED JULY 10, 1951 — DECIDED SEPTEMBER 12, 1951.
On April 29, 1949, L. G. Gower and twenty-one other persons, named as plaintiffs, filed an equitable petition against M. A. Conway and J. C. Spence, seeking to cancel a written agreement between the defendants, to enjoin the defendants, temporarily and permanently, from trespassing upon the lands described in the written agreement, and other relief.
Within the time provided by law the defendants filed demurrers and an answer. On March 7, 1951, and during the March term of the Superior Court of DeKalb County, the case was called for trial. There was no response for the plaintiffs. The defendants introduced evidence, a verdict was rendered, and a decree of the court entered thereon in favor of the defendants.
On March 30, 1951 (during the term of court at which the verdict and decree in favor of the defendants were entered), the plaintiffs, by their attorneys of record, filed a motion to vacate and set aside the verdict and decree upon the grounds that: The demurrer of the defendants to the plaintiffs' petition had not been passed upon by the court. Notwithstanding this fact, the court placed the cause upon the trial calendar for the March term, 1951, in the absence of the plaintiffs and their counsel of record, and, without notice to either of them, "attempted to try the issues and merits in said equitable cause, as in default, without first having disposed of the demurrers of the defendants, as required by law." Neither the plaintiffs nor their counsel had any notice from the court or counsel for the defendants that the cause had been placed upon the trial calendar. The act of the court in allowing the cause to proceed to trial without determining the defendants' demurrers was in violation of the rules of law and rights of the plaintiffs and their counsel. To allow the verdict and decree in favor of the defendants to stand against the plaintiffs would deprive the plaintiffs of their day in court. The plaintiffs verily believe that they have a good cause of action, and have been so advised by their counsel. The record shows upon its face that there is a definite controversy existing between the plaintiffs and the defendants, and that the plaintiffs are entitled to try the issues as the law provides. They prayed that the verdict and decree be vacated and set aside.
A rule nisi was duly entered, on the same date, requiring the defendants and their counsel to show cause why the verdict and decree entered on March 7, 1951, should not be vacated and set aside. The defendants filed a demurrer and an answer to the motion to vacate and set aside. The demurrer was overruled. At the conclusion of the hearing it was ordered that the motion to vacate and set aside the verdict and judgment be granted.
The defendants except to the order overruling their demurrer, and to the judgment vacating and setting aside the judgment and decree previously rendered in favor of the defendants.
The bill of exceptions recites that the movants in the motion to vacate and set aside introduced the original pleadings and no other evidence. The defendants introduced in evidence a copy of the Fulton County Daily Report, dated February 22, 1951, containing the jury calendar for the March term of DeKalb Superior Court, in which the case of the plaintiffs against the defendants appeared. The defendants also introduced a typewritten calendar, which the deputy clerk of the court testified was made up and displayed in the office of the clerk in advance of the March term, and upon which calendar appeared the case of the plaintiffs against the defendants.
The parties will be referred to in the opinion as they appeared in the court below.
1. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. A motion to set aside a judgment, like a motion in arrest, must be based on defects apparent on the face of the record which are not amendable. It differs from a motion in arrest of judgment only in that the latter must be made during the term in which the judgment was rendered, while a motion to set aside a judgment may be made at any time within the statute of limitations. Pulliam v. Dillard, 71 Ga. 598; Artope v. Barker, 74 Ga. 462; Love v. National Liberty Ins. Co., 157 Ga. 259, 262 ( 121 S.E. 648).
The plaintiffs allege that neither the court nor the defendants notified the plaintiffs that the case was set for trial at the March term. Such allegations do not constitute a defect apparent upon the face of the record. It is contended that the demurrers of the defendants to the petition had not been disposed of by the court, and that this was such a defect, apparent upon the face of the record, as would authorize the court to set aside the verdict and judgment for the defendants. The plaintiffs cite and rely upon the Code, § 81-1002, which provides that in all cases demurrers, pleas, and answers shall be disposed of in the order named.
In Smith v. Hornsby, 70 Ga. 552, it was held that a defendant may withdraw a demurrer to the plaintiff's petition at any time, and that a declaration by the trial judge that he would overrule the demurrer would not debar the right of withdrawal. It was further held that the right of withdrawal is included in the privilege of amending pleadings at any stage of the cause, in form or substance, as provided by law. See Code, § 81-1301; Jenkins v. Lane, 154 Ga. 454 ( 115 S.E. 126); Ledbetter v. Goodroe, 179 Ga. 69 ( 175 S.E. 250).
The failure of the defendants to withdraw or dismiss their demurrers before proceeding to trial upon the merits of the cause was a defect which could have been cured by an amendment withdrawing the demurrers, and was a defect aided by verdict. This being so, the judgment can not be arrested or set aside for failure to formally withdraw or waive the demurrers before verdict and judgment. Moss Co. v. Stokeley, 95 Ga. 675, 678 (2) ( 22 S.E. 692). See also: Bond v. Central Bank of Ga., 2 Ga. 92, 100; Stanford Golden v. Bradford, 45 Ga. 97; Dortic v. Lockwood, 61 Ga. 293; Davis v. Bray, 119 Ga. 220 ( 46 S.E. 90); Burch v. Dodge Co., 193 Ga. 890 ( 20 S.E.2d 428); Stowers v. Harris, 194 Ga. 636 ( 22 S.E.2d 405).
2. A different result would not be authorized had the motion to set aside been directed at a judgment not aided by verdict. "The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the petitioner." Code, §§ 37-219, 110-710. In the present case the plaintiffs in their motion to vacate and set aside the verdict and decree against them do not charge any fraud on the part of the defendants, nor do they show accident, mistake, or any act of the defendants unmixed with negligence of the plaintiffs. It is clearly shown by the evidence that any reasonable degree of diligence would have revealed that the cause was set for trial, and the failure of the plaintiffs and their counsel to ascertain this fact is not a meritorious reason to vacate and set aside the verdict and decree.
"While a motion to set aside a judgment is addressed to the sound discretion of the judge, it should not, although made during the term at which the judgment was rendered, be granted unless some meritorious reason be given therefor." Moore v. Kelly Jones Co., 109 Ga. 798 (2) ( 35 S.E. 168); Kellam v. Todd, 114 Ga. 981 ( 41 S.E. 39); Ingalls v. Lamar, 115 Ga. 296 ( 41 S.E. 573); Deering Harvester Co. v. Thompson, 116 Ga. 418 ( 42 S.E. 772); Martin v. Shields, 144 Ga. 179 ( 86 S.E. 538); Cahoon v. Wills, 179 Ga. 195, 196 ( 175 S.E. 563); Hurt Buildings v. Atlanta Trust Co., 181 Ga. 274, 283 ( 182 S.E. 187); Cofer v. Maxwell, 201 Ga. 846, 848 ( 41 S.E.2d 420).
The plaintiffs did not show any meritorious reason why the judgment against them should be vacated and set aside, and the court erred in granting the motion.
Judgment reversed. All the Justices concur.