44 Ga. App. 44 | Ga. Ct. App. | 1931
Lead Opinion
1. A motion to set aside a judgment, on the ground that a confession of judgment on which the judgment was rendered was obtained by fraud, failed to show such, fraud as would authorize the setting aside Of the judgment, where the only alleged fraud consisted, not in the procurement of the execution of the document that constituted the confession of judgment, but in the suit, itself, which was one to recover for the defendant’s conversion of money assigned to the plaintiff under a salary assignment, as having been based upon fraudulent transactions, such as that the assignment was made after the date of the alleged conversion, that the transaction was a loan, that the plaintiff had not credited the defendant with payments made upon the indebtedness, and that no copy of the assignment was attached as an exhibit to the petition, and also in the plaintiff’s representing to the court as true the facts alleged in the petition.
2. Matters purely defensive and going in denial of the plaintiff’s right to recover do not afford grounds to set aside a judgment. It is therefore no ground for the defendant’s motion to set aside the judgment against him that the indebtedness sued on was discharged by bankruptcy.
3. “No confession of judgment shall be entered up . . unless the cause has been regularly sued out and docketed as in other cases.” Civil Code (1910), § 5954. An allegation, in a motion to set aside a judgment rendered on a confession of judgment, that “at the time said confession was entered” the suit had not been docketed as provided in section 5954 of the Civil Code of 1910, constitutes ground for setting aside the judgment.
4. The affidavit to the petition for certiorari met the requirements of section 5184 of the Civil Code (1910).
5. The dwmuTcr Ui (he defendant's motion to set aside the judgment was improperly sustained, and the judge oí the superior court erred in refusing to sanction the defendant’s petition for certiorari.
Judgment reversed.
Rehearing
ON REHEARING.
This case arises upon a bill of exceptions to a refusal of the judge of the superior court to sanction a petition for certiorari, wherein a defendant in a case in the municipal court of Macon excepted to a judgment in that court sustaining a demurrer to his motion to set aside a judgment rendered against him in that court. It appeared, from the petition for certiorari, that the grounds of the motion to set aside the judgment were that the judgment, which had been rendered upon what purported to be a confession of judgment by the defendant, was invalid for various reasons, among them being that the purported confession of judgment had been obtained by fraud and that it had not been entered after the case had been “regularly sued out and docketed,” as provided in section 5954 of the Civil Code of 1910. It further appeared from the petition for certiorari that the judgment was rendered in an action to recover a sum representing an amount of money which the defendant had collected as wages due him from his employer after he had made an assignment of Ms wages to the plaintiff, that the petition was filed in the municipal court of Macon on January 18, 1930, and that there was attached to the petition an entry of the same date, signed by the defendant, in which he admitted the allegations of the petition, waived process, etc., and recited, “judgment confessed for the amount sued for;” that on January SO, 1930, a judgment on the confession was entered against the defendant in the sum of $450, the amount sued for, and court costs, and that to a motion to set aside.this judgment, afterwards filed, a demurrer was, on August 8, 1930, sustained, and the motion dismissed.
Paragraphs 1, 2, and 4 of the syllabus need no elaboration.
3, 5. Section 5954 of the Civil Code of 1910 reads as follows:
The expression “confession of judgment,” as contained in the code section, has reference to the act of the defendant whereby he admits or confesses the right of the plaintiff to take a judgment against him, and not to the entering up, or rendition of, the judgment itself which is rendered upon the defendant’s confession of judgment. The Supreme Court, in Williams v. Atwood, 52 Ga. 585, seems to take this view.
At common law, confessions of judgment were made after the action had been brought, except where the defendant, by warrant of attorney executed before action brought, authorized an attorney to confess judgment for him. See 3 Chitty’s Practice, p. 664: “When a writ has already been 'issued against a defendant, a cognovit actionem, or in other words, a written confession of the action, subscribed by the defendant but not sealed, and authorizing the plaintiff to sign judgment and issue execution usually for a named sum, is a very usual mode of saving the expenses of further proceedings in action; though when no writ has been issued, the more usual security, having- the same effect, is a warrant of attorney." See also 1 Tidd’s Practice, 559; 1 Black on Judgments (2d ed.), § 51; 3 Freeman on Judgments (5th ed.), § 1302; 4 Enc. P. & P. 560; 11 Enc. P. & P. 973; 17 Am. & Eng. Enc. L. 765; 2 Bouvier’s Law Dictionary (8th ed.), 1720, “Judgment.” At common law, confessions of judgment which were made after the action was brought were of two classes: one before a plea was
Actions at common law were commenced by the issuance of the writ, and not by the filing of the declaration as in this State pursuant to the judiciary acts referred to. It would therefore seem that the legislature, in making provision, in the several judiciary acts, as to the time when a confession of judgment should be entered, intended to recognize the common-law rule, which perhaps was already the law by virtue of our adopting act of 1784,
A confession of judgment is not "entered up” until 'it is filed in court. Although it may be made and entered on the petition before the petition is filed, and may be filed with the petition, it is thereby "entered up” simultaneously with the filing of the petition and not after the case has “been regularly sued out and docketed.”
The confession of judgment in this case, not having been entered up after the case had been regularly sued out and docketed, as required by section 5954 of the Civil Code of 1910, a judgment entered thereon was void, and the trial judge erred in not sustaining the motion to set it aside upon that ground. The superior-court judge therefore erred in refusing to sanction the defendant’s petition for certiorari.
See generally, in this connection, 34 C. J. 97 et seq; Farquhar v. DeHaven, 70 W. Va. 738 (75 S. E. 65, 40 L. R. A. (N. S.) 956, Ann. Cas. 1914A, 640; French v. Willer, 126 Ill. 611 (18 N. E. 811, 2 L. R. A. 717, 9 Am. St. R. 651); First National Bank v. White, 220 Mo. 717 (120 S. W. 36, 16 Ann. Cas. 889); Mason v. Ward, 80 Vt. 290 (67 Atl. 820, 130 Am. St. R. 987); Little v. Dyer, 138 Ill. 272 (27 N. E. 905, 32 Am. St. R. 140); Saunders v. Lipscomb, 90 Va. 647 (19 S. E. 450); Rogers v. Bowen, 19 Ga. 596; Davis v. Hughes, 7 Term R. 206.
Judgment adhered to.