ARGUED SEPTEMBER 14, 1973.
DECIDED OCTOBER 4, 1973.
Election contest. Fulton Superior Court. Before Judge Alverson.
Henry M. Henderson, for appellant.
Webb, Parker, Young Ferguson, John Tye Ferguson, Huie, Brown Ide, R. William Ide, G. Donald Johnson, for appellees.
1. The contentions that the plaintiff's complaint fails to set forth a claim upon which relief may be granted may be made as part of defensive pleadings or by separate motion.
2. Where a complaint seeks to set aside a prior judgment because of fraud on the part of the defendants in the prior action, and the complaint discloses that the plaintiff knew of such alleged fraud prior to the rendition of the judgment sought to be set aside, and such question was either passed upon or not raised in the former action, a motion to dismiss the complaint for failure to set forth a claim upon which relief may be granted is properly sustained.
ARGUED SEPTEMBER 14, 1973 — DECIDED OCTOBER 4, 1973.
On April 21, 1972, the Court of Appeals affirmed a judgment adverse to the appellant in the case sub judice. Henderson v. County Board of Registration and Elections, 126 Ga. App. 280 ( 190 S.E.2d 633). In that action he and his wife had sought to set aside the results of an election in which the following question was submitted to the voters of Fulton County: "Fulton County has executed a contract with Metropolitan Atlanta Transit Authority dated as of September 1, 1971. Shall this contract be approved?"
The complaint in the case sub judice seeks to set aside the judgment affirmed by the Court of Appeals because certain "overvotes" were not recounted. The complaint alleges in part that the "... so-called `Overvotes' were not in any way processed in such purported recount activities and it was by accident that this plaintiff discovered the box or carton marked and labeled `Overvotes' or the equivalent among the boxes or cartons containing the ballots that had been processed in such purported recount and the so-called `spoiled' ballots. When this plaintiff insisted that such box or carton of `Overvotes' be carried before the Court, both Messrs. Graham and Malone refused and retorted that such would not be done unless ordered by the Court. This plaintiff replied that he was going to seek the order of the Court for the production of the box and he suggested that box be carried along so that it would be on hand and immediately available for examination and scrutiny of the contents upon the court's order for production, but Messrs. Graham and Malone adamantly refused and the only boxes carried out of the storeroom on the Ninth Floor of the Fulton County Court House were those containing the ballots purportedly recounted on Saturday and Sunday, November 27 and 28, 1971, and the so-called `spoiled' ballots." It is then alleged that the "acts herein complained of are and have been unmixed with any negligence a fault of this complainant."
This complaint, originally filed, did not include the Metropolitan Atlanta Rapid Transit Authority as a defendant, but such Authority was later permitted to intervene "in the cause ... with like effect as if named an original defendant..." Motions to dismiss the complaint were sustained and the present appeal filed.
The appellant enumerates as error the sustaining of such motions and dismissing the complaint upon the grounds that the complaint was not subject to such a motion and because the trial court was without authority to rule upon such question at the time it was passed upon.
1. The first defense of the original defendants was a motion to dismiss for failure "to set forth a cause of action" and the first defense of the Metropolitan Atlanta Rapid Transit Authority was that the complaint failed to set forth a claim upon which relief could be granted. Under the provisions of the Civil Practice Act (Ga. L. 1966, pp. 609, 622, as amended; Code Ann. § 81A-112 (b)), these motions could properly be a part of the defendants' responsive pleadings.
The judgments dismissing the complaint are regular on their face and without a transcript of the hearing where such motions were ruled on it cannot be said that such motions were not "ripe" for determination. Accordingly, the first, second and fourth enumerations of error are without merit.
2. The allegations of the complaint seek to have the judgment previously affirmed by the Court of Appeals set aside because certain "overvotes" were not counted, yet the quoted allegations of the complaint disclose that the plaintiff had knowledge of such "overvotes" prior to the judgment sought to be set aside, and such issue was expressly ruled upon by the Court of Appeals. Compare Thomason v. Thompson, 129 Ga. 440 (2) ( 59 S.E. 236); Kitchens v. Clay, 224 Ga. 325 ( 161 S.E.2d 828).
Under such circumstances, the complaint affirmatively showed that the plaintiff was not entitled to the relief sought and the judgment dismissing the complaint must be affirmed.
Judgment affirmed. All the Justices concur.