27 Ga. App. 250 | Ga. Ct. App. | 1921
Lead Opinion
1. The motion to dismiss the bill of exceptions is denied.
2. An unreversed judgment of a competent court cannot be collaterally attacked except for fraud or collusion, or for some defect apparent, upon the face of the record or pleadings. Civil Code (1910), §§ 3218 and 5966; Hammock v. McBride, 6 Ga. 178; Smith v. Cuyler, 78 Ga. 654 (2) (3 S. E. 406); Williams v. Lancaster, 113 Ga. 1020 (6) (39 S. E. 471). See also, in this connection, Civil Code (1910), §§ 4629, 4630, 5965; McArthur v. Matthewson, 67 Ga. 134.
3. In a money-rule proceeding, where C claims money In the hands of the sheriff, derived from the sale of certain property of B, sold by the sheriff under an execution in favor of A against B, and A intervenes and claims the fund, and C alleges in his petition that the judg
(a) In the instant case the judgment was collaterally attacked solely on the ground of fraud in its procurement, and the only allegation in the petition as to fraud was that the judgment was taken for too great an amount (the amount of the excess being stated) and was therefore fraudulent “to the extent of this excess.” This allegation, if true, does not necessarily show fraud in the procurement of the judgment. The judgment may have been taken for too great an amount simply through accident or mistake, and a judgment cannot be collaterally attacked on the ground that it was procured through accident or mistake; and furthermore, the judgment was not attacked on such a ground. The allegations in the petition being insufficient to show fraud, it was not error for the court to exclude the evidence offered to prove such allegations.
i. The court, sitting by consent without the intervention of a jury, committed no material error in its rulings upon the admissibility of evidence, and did not err in rendering the judgment excepted to.
Judgment affirmed.
Dissenting Opinion
dissenting. I think this court should pass au order directing the trial judge so to modify his judgment in this case as to allow the bank to collect from the funds in the hands of the sheriff the principal of the debt, $4,500, interest thereon at 8 per cent, from February 8, 1912, 10 per cent, attorney’s fees, and costs. Of course I recognize the presumption in favor of a judgment rendered by a court of competent jurisdiction and unreversed, but this presumption -may be overcome by proof of fraud. I shall not undertake to quote all the evidence in this case; but the evidence clearly shows that there was due on this indebtedness, when the claim was transferred to the bank, only $216 interest, and that this was all the interest the bank ever paid, and that when the bank bought the claim all the interest on the notes up to February 8, 1912, had been paid by B. J. Webb, M. W. Webb swore that he was cashier of the Farmers & Mechanics Bank when these notes were bought from Mrs. Webb.
In Hammock v. McBride, 6 Ga. 178, it was held that “creditors or bona fide purchasers may attack a judgment fraudulently obtained, whenever it interferes with their rights, either at law or in equity.” In Smith v. Gettinger, 3 Ga. 140, it was held: “A judgment in attachment may be set aside in a court of law, upon an issue suggesting fraud or want of consideration, tendered by a judgment creditor of the defendant in attachment.” In Smith v. Cuyler, 78 Ga. 654, 660 (3 S. E. 407), Chief Justice Bleckley said: “Fraud is not a thing that can stand even when robed in a judgment.” In Williams v. Lancaster, 113 Ga. 1020 (6) (39 S. E. 471), the Supreme Court said: “A collateral attack upon a judgment may be made in any court upon the ground of fraud. Civil Code [1895], §§ 5370, 4032.”
Under the above rulings, I think the trial judge should have considered all the evidence offered for the purpose of showing that the judgment in favor of the bank was in excess of the amount actually due it; and when all the evidence in reference to this matter is considered, I think the cpurt. erred in holding that in this proceeding the bank should be allowed to collect the entire amount for which judgment was entered.