174 Ga. 180 | Ga. | 1932
Lead Opinion
This is a proceeding to set aside a judgment on the ground that the petitioner, against whom the judgment was rendered, was insane at the time the contract was made and when the judgment was rendered. The petition is addressed to the superior court of Irwin County, and contains a prayer for process and second original; and all of the parties appear to be before the court. The defendant filed a demurrer contending: (1-3) That the petition sets forth no cause of action. (2) That there is no equity in the petition. (4) That it appears that this is an equitable proceeding, and that the defendant resides in Ben Hill County; and as there is no defendant residing in Irwin County, the superior court of that county has not jurisdiction, but jurisdiction, if there is any case, is in Ben Hill County. (5) That it appears from the petition that no defendant in said action resides in Irwin County, and therefore the superior court of that county has no jurisdiction. Is this an “equity case” as provided in the constitution of Georgia (Civil Code, § 6540) ? If Irwin County has no jurisdiction of the proceeding, any judgment rendered would be void.
In Ayer v. James, cited by Mr. Justice Lamar, it was said: “Treated technically as a motion Ho set aside the judgment,' the motion presented in behalf of James was clearly insufficient; for, as was held by this court in Clark’s Cove Guano Co. v. Steed, 92 Ga. 440 (17 S. E. 967), ‘Where a judgment of the superior court is based upon the verdict of a jury, and there is no motion for a new trial or to set aside the verdict, a motion to set aside the judgment will not be granted for any cause which does not appear upon the face of the record or pleadings.’ ” So, in the present case, if the proceeding be treated technically, as a motion to set aside a judgment, as contemplated in the Civil Code (1910), § 5957, the general demurrer based upon “no cause of action” must obviously be good. But we do not so construe it. While this proceeding is by a petition with process attached, as in an original suit, in fact it merely seeks to reopen a case which lias been prosecuted to judgment. It partakes of the nature of a motion to set aside a judgment, but is not an ex parte proceeding. It is more than a motion. It seeks common-law relief. It brings the party who obtained the judgment back into the court where the judgment was rendered, as provided in the Code (1910), §§ 5962, 5968. The latter section declares that a judgment that is void may be attacked in any court by anybody, and then declares: “In all other cases judgments cannot be impeached collaterally, but must be set aside by the court rendering them,” which is a reiteration in substance of § 5962. It lays no restriction on the method of procedure. Finally, in Dixon v. Baxter, 106 Ga. 180 (32 S. E. 24), this court decided the precise question here involved, and the decision received the concurrence of all the Justices. See also Schulze v. Schulze, 149 Ga. 532 (101 S. E. 183).
Rehearing
On Motion roe Rehearing.
Plaintiff im error, after this case was decided and before the ■remittitur was sent down, in a -proper manner, calls to the attention of this court the fact that the decision rendered deprives this court of jurisdiction. In other words, this court decided that this is not “an equity case” as contemplated by the constitution fixing venue (Civil Code (1910), § 6540), and accordingly the Court of Appeals and not this court has jurisdiction. Civil Code (1910), § 6502. That point was overlooked; and we now hold that not this court, but the Court of Appeals, has jurisdiction. Counsel for plaintiff in error are extended our thanks for the correction. Incidentally we find that the fifth ground of the demurrer was not included in the statement of the case as originally decided, and that correction is now made. The judgment of affirmance is withdrawn, and in lieu thereof it is ordered that the case be transferred to the Court of Appeals.
So ordered.