45 S.E.2d 713 | Ga. Ct. App. | 1947
A judgment by default rendered in the superior court in an action on a claim for unliquidated damages, by a judge without a jury trial, is void and may be attacked by an affidavit of illegality when an execution issued thereon is levied.
(a) A prior ruling of the trial judge against the defendant's motion to set aside the judgment, from which ruling no appeal was made, was not res judicata; and the failure of the defendant to appeal from that ruling did not vitalize said void judgment.
The defendant was served personally but filed no answer. On March 10, 1947 the court rendered a judgment by default and without a jury trial, in favor of the plaintiff and against the defendant, for the amounts claimed. Execution was issued on March 11 on said judgment and entered on the general execution docket. On March 15 Horace L. Greene filed a written motion to set aside the judgment of March 10, and reopen the case so that a hearing might be had on his defense. The court issued a rule nisi on that motion, and upon the hearing, counsel for Mrs. Evie Greene moved to dismiss it on the ground that it did not set out any legal reasons why the judgment should be set aside. The motion to dismiss was sustained on April 26, 1947. Horace L. Greene did not except to or appeal from that ruling. Thereafter, on July 15, the execution was levied on property of Horace L. Greene, whereupon he filed an affidavit of illegality alleging that the judgment was void; that the suit was not an action on a liquidated demand, but was a suit in equity for a receiver, an accounting and settlement; and that under the law a verdict of a jury was necessary before a judgment could be rendered. Counsel for the plaintiff moved to dismiss the illegality on the ground that the validity of the judgment had been determined in the motion to set it aside, which motion was decided against the defendant, and which ruling was res judicata. The court sustained the motion and dismissed the illegality. The defendant excepted.
If the judgment was void the illegality should have been sustained. Harrell v. Davis Wagon Co.,
It thus appears that the right of a plaintiff to take a judgment by default and without a trial by a jury, in actions founded on claims for unliquidated damages, is the same under the new rules as it was under the old law in force prior to January 1, 1947. The action in the case at bar was on a contract or claim for unliquidated damages. It follows that the plaintiff was not entitled to a judgment without the verdict of a jury, even though the case may have been in default.
"Where suit is brought in the superior court on an open account, and there is personal service and no plea is filed, a judgment rendered by the court without the intervention of a jury is void. `The court can enter up judgment without a jury only in civil cases founded on unconditional contracts in writing, where an issuable defense is not filed under oath or affirmation.'"Jowers Son v. Kirkpatrick Hdwr. Co., supra, and citations therein. Under this ruling the judgment rendered by the court in this case, without the intervention of a jury, was void. The judgment being void, the execution issued thereon was likewise void, and a void judgment and execution can be attacked by an illegality. Harrell v. Davis Wagon Co., supra. However, the plaintiff contends that the ruling of the trial court denying the motion of the defendant, previously made, to set aside the judgment and reopen the case, from which ruling the defendant made no appeal, was res judicata. That contention is without merit under the holding of the Supreme Court in Jones v.Jones,
The trial court was without jurisdiction to render the judgment without the verdict of a jury, the action being for unliquidated *229 damages, and such judgment was void. It was error to dismiss the illegality.
Judgment reversed. Sutton, C. J., and Felton, J., concur.