113 Ga. 170 | Ga. | 1901
J. A. N. Moore, as attorney in fact for Martha Moore, A. L. Terry, N. H. May, Margaret Duncan, Minnie Mack, and James Smith, and as next friend of John Deaton Jr., Hugh Deaton, and Rosa Deaton, and S. R. Moore, as attorney in fact for John Deaton, brought an equitable petition for the recovery of certain lands and the mesne profits of the same, and for injunction, against Cicero Roberts, Gr. W. Irwin, and others, in which they alleged that the lands sued for belonged to the estate of .William Deaton, deceased; that the persons named, in whose behalf J. A. N. and S. R. Moore respectively sued, were the heirs at law of said William Deaton, and, as such, the owners of and entitled to the possession of the lands sued for; that Roberts, Irwin, and the other defendants were each illegally in possession of a designated portion of these lands. In this suit the plaintiffs obtained a verdict and decree against the several defendants, in which they recovered of each of the defendants, separately, a described portion of the lands and the mesne profits thereon. Subsequently Roberts and Irwin brought the present1 action, the same being an equitable petition to set aside this verdict and decree, and, until the final hearing, to enjoin the plaintiffs therein from transferring or levying the executions issued thereon. They alleged that, some time before the time set for the hearing of the application for injunction in the case against them, they employed counsel to represent them, and that counsel on both sides agreed that the restraining order which had been granted should stand continued until the final hearing of the case; and that they stated to counsel for the plaintiffs “ that if he would examine the records in the ordinary’s office, he would find that the allegations in the petition [of his clients]
The question for our consideration and determination is, did the court err in sustaining the demurrer to the petition in this ease ? Granting that the allegations of the petition show that Roberts and Irwin were, by the fraud of the counsel of the adverse parties, unmixed with fraud or negligence on their part, prevented from setting up their defense to the suit in which the verdict and decree were rendered against them, the case then depends upon the character of the defense which they were prevented from making. Unless they show that they had a good defense, a court of equity will not set aside the verdict and decree of which they complain. “Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part.” Civil Code, § 4988. What was the defense which, for the reasons which they allege, they failed to make ? Upon this subject, they allege that they “ and those under whom they claim have a perfect title to said property, as will appear by reference to exhibit £C’” annexed to their petition. We must then refer to this exhibit to ascertain what this “ perfect title ” was, upon which they relied to defeat the action against them by the heirs at law of William Deaton, deceased. Turning to this exhibit, we find that it shows: a notice and citation by the ordinary of Jackson county, dated Oct. 8, 1874, in which, after stating that Elijah Deaton, administrator of William Deaton deceased, had applied for leave to sell the real estate of said deceased, “ all persons ” are notified and required to show cause, on the first Tuesday in December thereafter, why such leave to sell should not be granted; copies of two advertisements by said administrator of the sale of described land belonging to the estate of his intestate, one of the
Judgment affirmed.