58 Ga. App. 229 | Ga. Ct. App. | 1938
Lead Opinion
On September 29, 1937, A. W. Wilson filed his motion praying that a judgment nunc pro tunc be entered on a verdict procured by him against Mrs. Lora Tanner in Coffee superior court on January 19, 1934. Mrs. Tanner filed her answer to said motion, and the ease came on for trial before the court without the intervention of a jury. The motion and the answer were amended, subject to objection. The plaintiff filed separate general demurrers to the answer and the amendment thereto, and on October 11, 1937, the court sustained these demurrers and ordered that the judgment be entered and “dated nunc pro tunc as of January 19, 1934.” Wilson’s motion as amended was substantially as follows: 1. On January 19, 1934, at the October, 1933, adjourned term of the superior court of Coffee County, A. W. Wilson obtained a verdict against Mrs. Lora Tanner for $1379.45. 2. On February 15, 1934, “a judgment based upon said verdict was signed by this court, and an execution issued thereon.” 3. On “June 3, 1935, the judgment of the lower court was affirmed” (Tanner v. Wilson, 180 Ga. 694, 180 S. E. 614), “the remittitur being received by the clerk of the superior court . . on June 24, 1935.” 4. In a subsequent case filed in said court by G. J. Tanner against A. W. Wilson et al., the Supreme Court of Georgia, on May 15, 1937, rendered judgment declaring that all steps in the prior case of A. W. Wilson v. Mrs. Lora Tanner after the rendition of the verdict therein were void, and “because of said ruling it is now necessary and proper that judgment be entered based on said verdict, said judgment to be dated nunc pro tunc as of January 19, 1934.”
In her answer Mrs. Lora Tanner admitted paragraphs 1, 2, 3 of the motion, and “all of paragraph four except the language
The gist of the amendment to the foregoing answer is that the verdict of January 19, 1934, was obtained “by fraud and perjured testimony of plaintiff, all unknown to defendant at the time,” in that A. W. Wilson testified falsely that he paid Mrs. Sheba Davis $300 in cash for the notes declared upon, and owned them; that this statement was known by the plaintiff to be false when he made it, but respondent did not then know of its falsity, because it was within the knowledge of the plaintiff, and she did not find out the truth until the plaintiff admitted to Marvin Smith and others, after the judgment had been affirmed by the Supreme Court, that he “obtained them from the rightful owner by fraud and promises of purchase, and after obtaining them [said notes] and assignments thereof refused to purchase or redeliver or reassign said notes to Sheba Davis, or to complete said promises of purchase, and has admitted that he never at any time paid Sheba Davis . . therefor one single cent or other thing of value . . for said notes and mortgages;” and that in testifying falsely as stated, A. W. Wilson “perpetrated a fraud on defendant, on Mrs. Sheba Davis, and on said jury, and thereby . .- induced the jury . . to render a verdict in his favor, . . and said verdict is null and void, and . . no judgment should now be entered on said verdict.”
Mrs. Tanner’s amendment to her original answer' was defective and subject to Wilson’s general demurrer, because it failed to allege that Wilson had been convicted of the perjury with which he was charged, and that the verdict could not have been obtained without his evidence. Code, § 110-706. In Hutchings v. Roquemore, 171 Ga. 359 (155 S. E. 675), the Supreme Court held: “A judgment obtained in a court in this State will not be set aside and declared to be of no effect, although the same was obtained and entered up in consequence of corrupt and wilful perjury, un
We shall consider next Mrs. Tanner’s original answer by paragraphs. The first paragraph, admitting paragraphs 1, 2, 3 of the motion, and all of paragraph 4 except the averment therein that it was necessary that the judgment nunc pro tunc be entered, needs no special consideration. Neither are we impressed with the defense made in the second paragraph of the; answer, that at a time when there was no lien against either Mrs. Tanner or any of her property by virtue of the verdict of January 19, 1934 (no legal judgment having then been entered on said verdict), she conveyed to G. J. Tanner by warranty deed the 220 acres of land covered by the mortgage notes declared upon, and that “it would now be inequitable and unjust to him and respondent as warrantor of title to said lands . . to grant a judgment at this late date.” On the next day after the verdict involved in this case was procured, Mrs. Tanner moved for a new trial, which resulted in a supersedeas until after the judgment of the trial court had been affirmed on June 13, 1935, and the remittitur from the Supreme Court had been made the judgment of the trial court on June 24, 1935. See Tanner v. Wilson, 180 Ga. 694 (supra). While the original case was pending in the Supreme Court, and while the supersedeas was of force (Tanner v. Wilson, 184 Ga. 628, 192 S. E. 425), Mrs Tanner, on September 17, 1934, made to G. J. Tanner a warranty deed purporting to convey to him her interest (equity of redemption) in the 220 acres of land mortgaged to Wilson, subject to the security deed held by the Federal Land Bank. In this deed to G. J. Tanner the grantee assumed Mrs. Tanner’s indebtedness to the Federal Land Bank, and the bank accepted him on the obligation, but without relieving Mrs. Tanner therefrom. When the judgment in the case in which Wilson procured his verdict had been affirmed, and the remittitur from the Supreme Court had been made the judgment of the trial court,
In the first place the pleadings fail to show that Wilson was guilty of unnecessary delay in bringing his proceedings to have a nunc pro tune judgment entered on his verdict. The following facts appear from the record in the original case in which Wilson procured his verdict of January 19, 1934: The three notes declared upon were dated October 17, 1924, and were duly recorded on September 12, 1927. For value received, Sheba Davis, the payee in the notes, on October 10, 1931, transferred and assigned to A. W. Wilson all of her "right, title, interest, and equity in and to the within and foregoing promissory notes and mortgage” (Mrs. Lora Tanner, the maker of the mortgage notes, having incorpo
“Where, by inadvertence, counsel fail to enter up judgment on a recovery in an action of trespass vi et armis, within four days after adjournment of the court, the court may, at a succeeding term, on due notice to the defendant, grant an order to enter up the same nunc pro tunc.” Kelso v. Hill, 58 Ga. 364. “The lapse of two years from the rendition of the verdict will not prevent the entering of a judgment thereon nunc pro tunc, upon proper application and notice.” Chapman v. Chattooga Oil-Mill Co., 22 Ga. App. 446 (3), 449 (96 S. E. 579). It is evident that ordinarily the law designs that a judgment follow a verdict, and that in the instant case Wilson followed the proper procedure. Under the facts pleaded in the second paragraph of Mrs. Tanner’s answer, we are satisfied that it would be neither “inequitable” nor “unjust” to G. J. Tanner as an alleged innocent purchaser of the land in question from Mrs. Tanner, or to Mrs. Tanner as warrantor of the title to the land, to allow the judgment to be entered up nunc pro tunc as of the date of the verdict of January 19, 1934. Especially is this so since G. J. Tanner is not a party to this suit. “Generally a judgment entered nunc pro tunc relates back to the time when it should have been entered, and completes the record. Where there are no intervening equities, the judgment so entered will sustain a plea of res adjudicata between the parties, as to the matter involved in the litigation.” Walden v. Walden, 128 Ga. 126 (10) (57 S. E. 323). See also Perdue v. Bradshaw, 18 Ga. 287, where it was held that the common-law rule, providing that “when a verdict has been obtained at common law, and an appeal entered without judgment signed upon the said verdict, judgment shall not afterwards be signed further back than the time of disposing of said appeal,” should be “so far modified as to allow a nunc pro tunc judgment; but not to prejudice the intermediate rights of third persons.” In Tanner v. Wilson, 184 Ga. 628 (supra), where G. J. Tanner was the plaintiff in error, and which was a case in equity, said Tanner pleaded an intervening equity. In the instant case G. J. Tanner
We come next to consider on general demurrer, the striking of paragraph 3 of the defendant’s answer. In this connection we state first that we find no merit in the contention made in counsel’s brief that Wilson is estopped to rely on his mortgage because, in his original action, he sought (unsuccessfully) to establish a special lien on the land involved, and the Supreme Court dismissed his cross-bill of exceptions. See Tanner v. Wilson, 180 Ga. 694 (supra). Neither do we view favorably the contention of counsel for Mrs. Tanner that a judgment should not be granted to Wilson, because at the time he took his mortgage “on the entire fee of the land” there was an outstanding security deed covering the land described in the mortgage. In Wood v. Dozier, 142 Ga. 538 (83 S. E. 133), the grantor in the first security deed took a bond for the reconveyance of the property on payment of the debt, and, when he subsequently mortgaged the same land, retained said bond to reconvey. He later conveyed the same property to another person to secure a debt, and at the same time he transferred to that person the bond to reconvey. In the instant case no bond to reconvey was involved, and the following cases control the question at issue adversely to the contention of counsel for the plaintiff in error: Citizens Bank of Moultrie v. Taylor, 155 Ga. 416 (117 S. E. 247); Exchange National Bank of Fitzgerald v. Pearsons-Taft Co., 159 Ga. 168 (125 S. E. 377). See also Beckom v. Small, 152 Ga. 149 (108 S. E. 542); Cook v. Securities Investment Co., 184 Ga. 544, 550 (192 S. E. 179); Rountree v. Finch, 120 Ga. 743 (2) (48 S. E. 132); Thompson v. Citizens Bank of Dublin, 160 Ga. 85, 89, 90 (127 S. E. 287). Our view is that Mrs. Tanner’s mortgage to Wilson created a valid lien on the grantor’s equity of redemption in the land involved, and, the mortgage having been executed much more than four months before the filing of the petition in bankruptcy, that its lien was not affected by the bankruptcy proceedings. On January 19, 1934, Wilson procured a verdict fixing the amount due under his inort
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
1. It is true that this court inadvertently stated in its opinion that in Tanner v. Wilson, 184 Ga. 628, “the trial judge dismissed the petition on general demurrer, and the Supreme Court affirmed the judgment of the trial court on May 15, 1937,” whereas the judgment of the trial court was reversed by the Supreme Court. We have corrected the same by changing the word “affirmed” to the word “reversed” in the original opinion, so that the quoted clause will read: “the trial judge dismissed the petition on general demurrer, and the Supreme Court reversed the judgment of the trial court.” However, this alteration makes no difference in the conclusion reached in the original opinion, since it is apparent that the statement that the “Supreme Court ‘affirmed’ the judgment of the trial court” was a mere inadvertence which did not affect the decision in the slightest particular. For instance, we stated in the very next sentence that “it was not until the reversal of the judgment of the trial court by the Supreme Court in Tanner v. Wilson, 184 Ga. 628, supra, that it was held that the verdict of January 19, 1934, created no lien on the land in question;” and our original opinion clearly shows that this court acted on the correct premise, to wit, that in the case last cited the Supreme Court reversed the judgment of the trial court.
2. Exception is taken to the statement in the original opinion that the Supreme Court’s ridings in Tanner v. Wilson, 184 Ga. 628, “were apparently based upon the assumption that G. J. Tanner was an innocent purchaser as alleged in his petition.” The foregoing statement is warranted by the very language of the court in the case last cited, for on page 635 of that decision the court said: “Under the allegations of the petition, the plaintiff was a bona fide purchaser without notice and for value, and at a time when there-was no lien on the premises by reason of such verdict. All action taken by the trial court in that case during
3. In the original opinion this court stated certain facts as appearing “from the record in the original case in which Wilson procured his verdict of January 19, 1934.” The quoted clause clearly shows that those facts were not a part of the record in this ease, and were merely stated incidentally as a part of the history of the litigation.
4. The remaining grounds of the motion for rehearing are without merit.
Rehearing denied.
