102 Ga. App. 811 | Ga. Ct. App. | 1960
1. Plaintiff filed an action on a note against the defendant. The defendant failed to file any defensive pleadings, and a judgment was taken on August 10, 1959. On August 9, 1960, the defendant filed a motion to set aside the judgment, which motion contains allegations that the “plaintiff as a privey [sic] to the First Finance Corporation” had filed a prior suit upon the same cause which had terminated in favor of the movant when a general demurrer was sustained to the petition; that such judgment has never been set aside; that the movant had no knowledge of the instant case in order that he might file -his plea of res judicata, and that the judgment obtained in the instant case is void. The motion has attached thereto, as an exhibit, a copy of the prior suit. The trial court overruled the motion, and the defendant assigns such ruling as error.
2. The record in the instant case does not show any facts of the prior suit other than those contained in the allegations of the motion, or any defect on the face of the record or pleadings. The motion to set aside is without merit. Tobin v. Tobin, 212 Ga. 205 (91 S. E. 2d 508). “A judgment may be vacated for fraud, accident or mistake, unmixed with the negligence or fault of the complaining party.” Dugan v. McGlann, 60 Ga. 353. The record discloses service of a copy of the petition and process upon the defendant in a method provided by law. Such service was not traversed, and it must be presumed that such service was valid. Jewell Tea Co. v. Pattillo, 50 Ga. App. 620 (178 S. E. 925); Drake v. Brown
Judgment affirmed.
