Artope v. Barker

74 Ga. 462 | Ga. | 1885

Blandeord, Justice.

This was a motion to set aside a judgment rendered against J. B. Artope, as trustee for movants, he not being a party to this motion. The defendant in error, demurred. to the motion, which the court sustained, and movants excepted. The motion alleged many facts which, if true, would have defeated the judgment. The motion to set aside a judgment, like a motion in arrest, must be grounded on defects apparent on the face of the record, and these defects must be such as are not amendable. Code, §3587. And it differs from a motion in arrest only in this, that the latter must be made during the term, while the former can be made at any time within the period of the statute of limitations Code, §3588. There are no defects in the record of the case but what were amendable; consequently they are cured by the judgment. It would have been better for defendant in error to have set out the trust, its terms and character, and the declaration would have been subject to demurrer for a failure in this respect; yet it would have been amendable, and after judgment this defect is cured, and a motion to set aside the judgment for amendable defects cannot be sustained. If the plaintiffs in error have any such rights as they maintain, they can be heard fully in a court of equity, where the rights of all the parties can be heard and determined; to that court we must refer the plaintiffs in error.

Judgment affirmed.