Murray v. Willoughby, 133 Ga. 514

Murray v. Willoughby

133 Ga. 514 | Ga. | 1909

Beck, J.

We think that the court erred in vacating and setting aside the judgment, although the motion was made at the term at which the judgment was rendered. Motions of this character, as *517it has frequently been decided, are addressed to the sound discretion of the court, and this court will not interfere with the exercise of that discretion where it does not appear that it was abused; and where there is any doubt as to whether or not the court, at the time of rendering the judgment setting aside and vacating a judgment previously rendered, exercised a sound discretion, this court, as a general rule, will not disturb the ruling of the court below. I-n the present case, however, it seems to us that there was no room for the exercise of the discretionary power of the court, to whom the application to vacate a judgment solemnly rendered was addressed. It appears that a consent judgment had been taken, vesting the title to the property in controversy in Willoughby upon his compliance with certain terms and conditions plainly stated in the judgment, within a certain time, also fixed in the judgment; and the judgment just referred to vested in Murray the title to that property in the event Willoughby should fail to perform the obligation placed upon him. He did fail, and for his failure he seeks to set up an excuse; but that excuse could not avail him, because, as a foundation for relief against a judgment agreed to by his attorney of record, he alleges, not that he was misled by the opposite party or the attorney of the opposite party, not that his antagonist or the representative of his antagonist had failed to act in good faith, but that Ms own attorney had misled Mm, and that the terms of the judgment were not in accord with his understanding of that judgment, as he had derived it from his own attorney. He averred in his plea that he thought "that sixty days was the limit of the time within which he could make payment in order to have title to the property in controversy vested in him, while as a matter of fact the judgment itself gave him only fifty days. These things he set up in an answer to a suit to enforce the consent judgment. They did not constitute a good defense, and the court did not err in striking the plea. The demurrers filed by him in the suit brought by Murray against him were equally without merit; for if the judgment was valid and binding, Murray’s title to the land sued for was clear, and Ms declaration showed a right of recovery in Mm.

The motion to vacate and set aside the judgment in favor of Murray, previously granted, fails to allege that the movant had a good and meritorious defense which he could and would plead instanter. The movant does not attempt to show in his motion that *518he has any valid defense which he can plead, other than that made by his answer which had been stricken, and by the demurrers which had been overruled, and properly so, as we have above held. With his answer stricken, and his demurrer overruled, the court should not have granted the movant’s application to vacate the judgment against him and reinstate the ease, without a showing, duly sworn to, to the-effect that movant had a meritorious defense, or that there were other meritorious reasons; and it was error to rule otherwise. See Kellam v. Todd, 114 Ga. 981 (41 S. E. 39); Beall v. Marietta Paper Mill, 45 Ga. 28.

Judgment reversed.

All the Justices concur.