42 Ga. App. 312 | Ga. Ct. App. | 1930
This was a contest between two judgment creditors over the distribution of a fund brought into court under process of garnishment. Both judgments were obtained in the city court of Beidsville, but the contest arose and was heard in the superior
1. Creditor^ may attack a judgment for any defect appearing on the face of the record or pleadings, or for fraud or collusion, whenever and wherever it interferes with their rights, either at law or in equity. Civil Code (1910), § 5966, 3218. In other instances, however, they are bound by the principle that if a judgment be not void, it can not be impeached collaterally, but must be set aside by the court rendering it. Civil Code (1910), § 5968; Chapman v. Taliaferro, 1 Ga. App. 235 (3, 4) (58 S. E. 128); Brooke v. Farmers & Merchants Bank, 27 Ga. App. 250 (2) (108 S. E. 135), and cit.
2. A judgment obtained against an insane person is not void, where the defendant therein was duly served with a copy of the petition and process at a time when he was sane, although at the time of the judgment he was unrepresented by a guardian or
3. There is no contention that there was any defect or irregularity appearing on the face of the record or proceedings in which the senior judgment was obtained. Therefore seemingly the only possible ground of attack left to the junior judgment creditor was by proof of fraud or collusion, and the mere fact that the attorney for the plaintiff, at the time of procuring the older judgment, knew that after service was perfected on the defendant and before judgment he had been adjudged to be a lunatic and committed as such, would not amount either to fraud or collusion. The present case is distinguished from Portman v. Mobley, 158 Ga. 269 (123 S. E. 695).
The court did not err in giving preference to the qlder judgment.
Judgment affirmed.