145 Ga. 839 | Ga. | 1916
(After stating the foregoing facts.) The plaintiff in its petition proceeded upon the theory that, under the circumstances appearing in the statement of facts, the certificate to the bill of exceptions was not only not intended to be final, but was ineffective as a final certificate; always under the control of the judge until released by him in the manner pointed out in his letter. If we treat the bill of exceptions as never having been finally certified, and as having been improperly or fraudulently filed by counsel for the defendant in error, so as to give it a legal effect, the remedy would have been to promptly apply to a court of equity for the cancellation of the clerical act of filing the bill of exceptions in the office of the clerk of the superior court. The code provides that if the judge shall determine that the bill of exceptions tendered to him is not true, he shall return it, within ten days, to the party or his counsel, with his objections to the same in writing. If those objections are met and removed, the judge may then certify, specifying in his certificate the cause of the delay. If the cause of the delay is not attributable to the plaintiff in error, the bill of exceptions will not be dismissed. Civil Code (1910), § 5158. Counsel was apprised that the delay in the service of the bill of exceptions would be taken advantage of, immediately after the filing of the bill of exceptions in the office of the clerk of the superior court, and more than a year before the present petition was filed to vacate the judgment in the Supreme Court, predicated upon facts connected with the filing of the bill of exceptions in the office of the clerk of the superior court. The plaintiff’s contention being that the certificate to the bill of exceptions was not
But it is contended that, as the present proceeding was filed within 60 days after the judgment of dismissal of the bill of exceptions, the plaintiff has a right to set aside the judgment as obtained by fraud. It is true that a judgment of the Supreme Court, like other judgments, may be set aside for fraud. Wade v. Watson, 133 Ga. 608 (66 S. E. 922). In that case a judgment of reversal was procured, and the party defrauded was held to be entitled to the judgment rendered in the lower court, because its reversal in the Supreme Court had been obtained by fraud. In the present case the effect of the dismissal of the bill of exceptions was to affirm the judgment in the court below, and the plaintiff seeks relief for the purpose of reviewing the judgment of the superior court by a petition in the nature of a bill of review. Technically a bill of review, or in the nature of a bill of review, is available only for the correction of judgments rendered by a court of equity. If the remedy be extended to a case for the review of a judgment rendered in a court of law, the remedy can not be extended to the instant case, where the judgment sought to be set aside could have been prevented if the party had seasonably moved to have vacated the entry of filing of the bill of exceptions.
Counsel for the defendant in error cite the case of Kohn v. Lovett, 43 Ga. 179, as a physical precedent for the present proceeding. The facts of that case vary from the case at bar, and it is not controlling. Inasmuch as the plaintiff was not entitled to the relief sought, it was error for the court to refuse to dismiss the case on demurrer, and to continue the temporary restraining order.
Judgment reversed.
