Bouldin v. Haverty Furniture Companies

136 Ga. App. 30 | Ga. Ct. App. | 1975

Bell, Chief Judge.

In this foreclosure of personalty proceeding, the State Court of DeKalb County, on July 26, 1974, entered an order dismissing the case for the failure of the affidavit of foreclosure to be sworn. See Code § 67-702. On April 11, 1975, the trial court granted plaintiffs motion to set aside this order, entered a judgment by default for plaintiff and issued a writ of possession. The trial court recited in the later judgment that the prior judgment of dismissal was obtained by the fraud of defendant. Held:

1. The court erred as it had no authority to set aside this judgment at a subsequent term of court on the basis of fraud. CPA § 60 (e) (Code Ann. § 81 A-160 (e)) does authorize the setting aside of a judgment for fraud by complaint in equity in the superior court. The State Court of DeKalb County has no equity jurisdiction.

2. The judgment of dismissal was apparently brought about by defendant tendering a copy of the original affidavit showing that it was not sworn, when in fact the original on file with the court showed to the contrary. This cannot be categorized as a non-amendable defect on the face of the record within the contemplation of CPA § 60 (d) (Code Ann. § 81A-160 (d)). At best it shows that error was committed by the trial judge. The judgment of dismissal was a final judgment and valid on its face.

Submitted September 15, 1975 Decided October 3, 1975. Jay W. Bouldin, pro se. Adrienne Black, for appellee.

We reverse and direct the trial court to reinstate the prior judgment of dismissal.

Judgment reversed with direction.

Webb and Marshall, JJ., concur.