Apperson v. Mutual Fertilizer Co.

148 Ga. 159 | Ga. | 1918

George, J.

(After stating the foregoing facts.) The plaintiffs treat their petition as a bill of review. A technical bill of review does not lie in this State, but a bill in the nature of a bill of review does lie. Brower v. Cothran, 75 Ga. 9 (2 a). A bill in the nature of a bill of review lies only to review a decree of a court of equity, and not a judgment at law. Donaldson v. Roberts, 109 Ga. 832 (35 S. E. 277). Where such a bill is proper, it must affirmatively appear that the petitioner could not, by due diligence, obtain the just and needed relief by motion. Central Georgia Bank v. Iverson, 73 Ga. 19; Donaldson v. Roberts, supra. Every infirmity in the judgment against Apperson and in the judgment against Henderson appears upon the face of the record. A motion in arrest of judgment was therefore an available remedy. If the judgments are illegal and void, as alleged in the petition, affidavit of illegality was a proper remedy to resist the enforcement of the execution. Harrell v. Davis Wagon Co., 140 Ga. 127 (78 S. E. 713); Williams v. Hinson, 143 Ga. 740 (85 S. E. 868). The petition in the instant case, as we have indicated, is not in 'reality a bill in the nature of a bill of review, but is a petition to set aside a common-law judgment. What we have said above applies with equal force to the petition when so considered. Equity will not relieve against a judgment if the defendant has an available, adequate, and complete remedy at law. The matters and things set forth in the petition as reason for interference with the judgments could *>ave been pleaded in the city court of Ashburn, because all of them were apparent on the face of the record, and may now be urged by an affidavit of illegality if they possess any legal efficacy. Indeed they have been urged by the plaintiffs in error and determined adversely to them by the Court of Appeals. Mutual Fertilizer Co. v. Henderson, 18 Ga. App. 495 (89 S. E. 602); Apperson v. Mutual Fertilizer Co., 20 Ga. App. 209 (92 S. E. 1029). The petition, which was dismissed on demurrer, does r,¿>t refer to these'cases; and we refer to the decisions by the Court of Appeals for the reason that we have in this case been asked to review and overrule them. We of course have no power in this proceeding to review the decisions by the Court of Appeals; but we cite them merely for the purpose of showing that complete and adequate remedies at law were available to the plaintiffs, and that they well understood the nature and character of these remedies. In Sanner v. Sayne, 78 Ga. 467 (2) (3 S. E. 651), a ease very much like the case made in behalf of'Apperson in the present record, it. was ruled: “The defects alleged to exist in such judgment appear on the face of the record and pleadings, and a motion in arrest of judgment was the proper remedy to correct these defects.” See also Dye v. Garrett, 78 Ga. 471 (3 S. E. 692); Rodgers v. Caldwell, 113 Ga. 635, 637 (37 S. E. 865, 866); Howard v. Wellham, 114 Ga. 934 (41 S. E. 63). While the position of the plaintiffs, especially of Henderson, the garnishee, may be an unfortunate one, nevertheless the judgment sustaining the demurrer and dismissing the petition must be affirmed.

Judgment affirmed.

All the Justices concur.