Opinion
36754.
DECIDED JUNE 17, 1957.
Petition to set aside judgment. Before Judge Hicks. Floyd Superior Court. March 26, 1957.
Scoggin Martin, for plaintiff in error.
Wright, Rogers, Magruder Hoyt, Clinton J. Morgan, contra.
To have a judgment set aside, a plaintiff must have a good defense of which he was entirely ignorant, or he must be prevented from making the defense because of fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his own part. The allegation that the plaintiff had no notice that he was being sued is not sufficient ground to set aside the judgment, the opposite party having complied with the law as to service.
DECIDED JUNE 17, 1957.
Loyd D. Milam brought suit against three defendants: Dorothy R. Busey, Joe Adams, sheriff, and Alton White, deputy sheriff. Paragraph 1 of the petition names the defendants and alleges jurisdiction.
Paragraph 2 alleges that Dorothy R. Busey filed a suit for damages against the plaintiff. Paragraph 3 alleges no proper service and entry of service. Paragraph 4 alleges that one of the defendants, Mrs. Dorothy R. Busey, took judgment by default. Paragraph 5 alleges that the plaintiff was served with a notice of levy on his lands to satisfy the default judgment. Paragraph 6 alleges that the plaintiff had no notice or demand against him by Mrs. Busey or her counsel; that the plaintiff never received any copy of a suit, no notice that any proceedings were pending against him and no notice that any judgment had been rendered against him until he was personally served with a notice of the levy. Paragraph 7 alleges that the plaintiff has a meritorious defense against the suit and seeks an opportunity to have his day in court which he claims he was deprived of because of lack of notice of the suit brought against him. Paragraph 8 alleges that the suit was brought within the statutory time. Paragraph 9 alleges that the judgment obtained by Mrs. Busey should be set aside so as to allow the plaintiff to file defensive pleadings to the damage suit.
Petitioner prayed as follows: (a) Defendants to appear to answer the complaint; (b) that a rule nisi issue requiring the defendants to show cause why the proceedings to levy should not be enjoined; (c) that the proceedings to levy be promptly enjoined and that the judgment against the plaintiff be set aside and vacated; (d) that the plaintiff be allowed to file defensive pleadings instanter in the case brought against him by Mrs. Busey.
Mrs. Busey filed a general demurrer to the petition, which was sustained by the trial court. It is on this judgment that the case is here for review.
A trial judge has the power, in the exercise of his sound discretion, during the term of court at which a judgment is rendered, to revise, revoke, or vacate it for the purpose of promoting justice. See Lawson v. Haygood, 202 Ga. 501 (3) ( 43 S.E.2d 649), Tyler v. Eubanks, 207 Ga. 46 ( 60 S.E.2d 130), and Bandy v. Smith, 211 Ga. 192 ( 84 S.E.2d 449). In Deen v. Baxley State Bank, 192 Ga. 300, 303 ( 15 S.E.2d 194) this court said: "A motion to set aside and vacate a judgment can not be determined by any fixed rule, but depends on the circumstances of the case, and exercise of the power to vacate a judgment rendered during the term will not be controlled on review, unless abused." See also Union Compress Co. v. A. Leffler Son, 122 Ga. 640, 642 ( 50 S.E. 483). The plaintiff must show due diligence to protect his interest. See Beddingfield v. Old National Bank c. Co., 175 Ga. 172 ( 165 S.E. 61).
So far correct principles of law have been enunciated, but have they any bearing on the instant case? It is our opinion that the law is that a judgment may be set aside only where a 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, not mixed with fraud or negligence on his part. See Code § 37-220, and Johnson v. Johnson, 210 Ga. 795 ( 82 S.E.2d 831). The only allegation of the plaintiff in the instant case is that he had no notice of the suit against him. This court has already decided that the plaintiff was properly served. See Busey v. Milam, 95 Ga. App. 198 ( 97 S.E.2d 533). The plaintiff has not pleaded the basis of a legal right to have the judgment set aside. See Bank of Doerun v. Fain, 148 Ga. 799 ( 98 S.E. 467). In addition to the decision of this court when this case was here before, there are many other decisions of our appellate courts to the same effect. See Venable v. Long Realty Co., 46 Ga. App. 803, 804 ( 169 S.E. 322), Lucas v. Wilson, 67 Ga. 356 (1), Moye v. Walker, 96 Ga. 769 (1, 3) ( 22 S.E. 276), and Lanier v. Nunnally Co., 128 Ga. 358 ( 57 S.E. 689).
The court did not err in sustaining the demurrer and in dismissing the petition.
Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs in the judgment.