Doyal v. TommeyDoyal v. Tommey
- Reporters:
- , ,
- Before:
- Hill
(After stating the foregoing facts.) The Civil Code оf 1910, § 5965, provides that “The judgment of a court of competent jurisdiction may be set аside by a decree in chancery, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant.” And see Dodge v. Williams, 107 Ga. 410 (33 S. E. 468); Wright v. Martin, 153 Ga. 32 (111 S. E. 190). It appears from the record in this case that the defendant had filed an answer to the action brought аgainst him, which he was prevented from prosecuting, without fault on his part, by the fraudulent rеpresentation of the plaintiff, made before the trial, that he would have thе suit dismissed on account of a settlement which had been made between the parties, a copy of which apрears in the record. But it is insisted by defendant thаt this agreement was without consideratiоn; that the plaintiff in the present case was the father of the child which he had аgreed to educate, and therefоre that there was no consideration moving from the plaintiff in the present case to him. But we are of the opinion thаt that is beside the question here involved. The question here is, had the defendant agrеed to dismiss the suit against the present plаintiff? If he had, and the plaintiff acted upon that agreement, and the defendant frаudulently went airead and prosecuted his suit to judgment notwithstanding the settlement of the case, this would be such a fraud upon the plaintiff as that he ’ could have the judgment set aside on a timely motion made for thаt purpose. The evidence in the case, on the motion to set aside, is sufficient to authorize the trial judge to find that suсh an agreement had been entered into and acted *381upon by the partiеs to the ease, and that it was a fraud upon the plaintiff for the defendant aftеrwards to prosecute the suit to judgment in thе plaintiff’s absence and without his knowledgе. We are of the opinion, therefore, that the trial judge was authorized, under the pleadings and evidence, to set aside the judgment and place the ease on the calendar for trial.
Judgment affirmed.
All the Justices concur.