Opinion
33153.
DECIDED SEPTEMBER 14, 1950.
Complaint on note; from Decatur City Court — Judge Phillips. April 14, 1950.
James H. Dodgen, H. E. Edwards, for plaintiff in error.
Carl T. Hudgins, contra.
Under the well-established principles of law applicable to a motion to set aside a verdict and judgment where the motion is based on matters not appearing on the face of the record, as applied to the alleged facts as shown by the motion in the present case, it appearing that the defendant was sick and unable to attend to business matters when served with the petition and process and until after the rendition of the judgment based on a verdict, and that she did nothing on account thereof, although recognizing the nature of the action and believing that she had a good defense, such defense being detailed in the motion, it was not error for the trial judge to sustain a demurrer to the motion and dismiss the same.
DECIDED SEPTEMBER 14, 1950.
George L. Morris Sr., brought an action in the City Court of Decatur against Mrs. George L. Morris Jr., on February 16, 1948, on a due and unpaid promissory note for $641.95. The defendant was served with a copy of the petition and process on February 18, 1948. The process required her to be and appear in court on the third Monday in March, 1948 [March 15], to answer the complaint. No defense was filed, nor any appearance made, and on March 17, 1948, a verdict was returned for the plaintiff for the amount of the note, with interest, and judgment was rendered accordingly.
On January 6, 1950, the defendant filed a motion to set aside the verdict and judgment, her allegations in this motion being as follows: "1. Movant shows that at the time this suit was filed on the 16th day of February, 1948, she was sick and had been hospitalized for some time; that when the said suit was served upon her on the 18th day of February, 1948, she was ill and distracted by said illness and put said copy of petition and process aside and was too sick to do anything about it. 2. When movant was served with said suit she looked at it and discovered that it purported to be a suit upon a promissory note by George L. Morris Senior (a personage who was at that time her father-in-law) and she knew that she did not owe him a single cent and therefore disregarded it. 3. Movant shows that while she did not owe him anything, the plaintiff, George L. Morris Senior, claimed that his son, George L. Morris Junior, who was at that time the husband of this movant, owed him $500. Movant shows that said George L. Morris Senior came to her and insisted that she sign some kind of paper to secure the indebtedness he claimed against his son. Movant shows that she had a faint recollection of signing something for George L. Morris Senior. She shows that at the time if she did actually sign a paper that she signed it by reason of the threats that said George L. Morris Senior made against her. She shows that he was armed at the time he came to her and that she was in fear of bodily harm at his hands, unless she complied with his demands. 4. Movant shows that if her signature does appear on a note it was secured by threats, coercion, and fraud. She shows that the plaintiff, George L. Morris Senior, knew at the time he came to her, that she did not owe him one cent, had never been indebted to him in any amount whatsoever. She shows that if the said George L. Morris Senior, ever loaned to the said George L. Morris Junior, any sum of money, or [if he] ever became indebted to the said George L. Morris Senior, she has no knowledge of the same. She shows that she has never in any way directly or indirectly, received any money from the said George L. Morris Senior. 5. Movant shows that when said case came up for a hearing, at the March term of 1948, of this court, she was sick and in bed. And that she had the Clerk of the City Court of Decatur called on the telephone, and informed of her condition. That she was informed that the clerk said it was too late, that a judgment had been rendered against her. 6. Movant shows that there was no consideration for said note and that it was worthless and that the plaintiff herein knew that there was no consideration therefor at all times, but took said note from this movant for the sole purpose of trying to make movant go back to plaintiff's son whom movant had had sent to the State Penitentiary for the offense of wife beating; that plaintiff had probably advanced movant's husband money and if so, he knew that his only chance of getting it back was through her. 7. Movant shows that the plaintiff threatened to do her bodily harm if she did not sign the said note and that she signed said note to make plaintiff leave her alone and quit threatening her; that the said note was obtained through fraud and was itself fraudulent and that the verdict and judgment herein based thereon was obtained by fraud practiced upon this court by the plaintiff herein who was at all times herein mentioned in full possession of all his faculties and knew what he was doing; that the effect of the verdict and judgment in this case is to make this movant liable for her husband's debts. Movant shows that she has never appeared or pleaded in this matter and has a good and meritorious defense and is ready to and here and now announces ready to appear and plead instanter in this case. 8. Movant shows that at the time the suit was filed and served upon her, she was in a hospital. And, at the return term of . . said case, to wit; on the first Monday in March, of 1948, she was still hospitalized, under the care of a physician, and was physically and mentally unable to attend to any business. 9. Movant shows that recently plaintiff came to movant and told her that he intended to have a fi. fa. based on said judgment levied on her property because she had his son and her former husband sent to the chain-gang again. Movant shows that she believes that this is the intention of the plaintiff and it is necessary that this court stop the plaintiff from so doing until the merits of this motion are determined." The allegations of the motion were verified by the defendant as being true to the best of her knowledge and belief.
The plaintiff demurred to the motion, for grounds thereof stating: "1. Said petition shows upon its face that the defendant is not entitled to the relief sought by her in said petition; said petition sets out no legal grounds for the relief sought by her. 2. Said petition shows that the defendant has had her day in court, and that she is not entitled to go behind the verdict and judgment and set up any defense which was available to her prior to verdict and judgment. 3. It appears upon the face of the record that verdict and judgment were rendered in said case against the defendant at the March term, 1948, and that, as a matter of law and of which the court must take judicial cognizance, ten terms of court intervened between the taking of said verdict and judgment before the motion was filed to set the same aside. That under the law, after expiration of the term at which said verdict and judgment were rendered in said case the court lost jurisdiction to entertain a motion for new trial thereon. That by the motion filed defendant seeks to obtain a new trial and the court was without jurisdiction to allow the same filed, and is now without jurisdiction to entertain the same. 4. That said motion is fatally defective because there is no approval of any ground of a motion by the court, that it is fatally defective as a motion for new trial because not filed within 30 days from verdict and judgment, and because no brief of the evidence was filed with said motion, or any order taken during the time the court had jurisdiction for entertaining a motion for new trial making provision for filing a brief of evidence. 5. Because it appears that the defendant is attempting by said motion to prevail upon the court to treat the same as a motion to open a default judgment, and as such the same is fatally defective for the following reasons: A. That the said motion was not filed within 30 days from the time said case became marked in default. B. Because the defendant has not paid the costs, as required by law. C. Because said motion was not made before judgment and verdict, accompanied by a legal showing of providential cause or excusable neglect, and a meritorious defense. D. Because the provisions of the statutes relating to opening of default judgments [relate] merely to simple defaults and [have] no application to final judgments rendered either upon verdicts or without verdict. 6. Because the so-called verification of the defendant to said motion is a nullity because it is not and does not attempt to be [a] positive assertion of facts."
Before there was any ruling on the demurrer the defendant amended her motion, alleging that on February 18, 1948, she had to get out of bed in order to go to the door and receive the petition and process when it was served, that she remained in bed until forced to go to a hospital on March 16, where she remained until about the second week in April, and that during the time she was in the hospital she remained in bed, and on March 17, 1948, she was unable to communicate with the court, and at no time was she able to have a defense prepared, and that if she had had her day in court she would have made the defense as shown in the motion and amendment. The demurrer of the plaintiff was renewed to the motion as amended.
The trial judge sustained the demurrer and dismissed the motion, and the defendant excepted.
"A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or the pleadings." § 110-702. "A motion in arrest of judgment differs from a motion for a new trial, in this: The former must be predicated on some defect which appears on the face of the record or pleadings, while the latter must be predicated on some extrinsic matter not so appearing. It also differs from a motion to set aside a judgment, in this: The motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set it aside may be made at any time within the statute of limitations." § 110-703. "Matters purely defensive and going in denial of the plaintiff's right to recover do not afford grounds to set aside a judgment." Thomas v. Bloodworth, 44 Ga. App. 44 (2) ( 160 S.E. 709). "When a party has been afforded an opportunity to be heard, the court cannot suspend or vacate its judgment merely to let in a defense which should have been offered before the judgment was entered. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 863 ( 151 S.E. 796)." Hurt Building Inc. v. Atlanta Trust Co., 181 Ga. 274, 283 ( 182 S.E. 187). "Whenever a motion is made to vacate a judgment, even during the term at which the same was rendered, the movant must allege and prove some reason good in law why he had failed to make his defense at the time required . . The law rewards diligence, but is slow to harken to the prayer of the slothful. The vigilant man does not need to make excuses, but where one has sat idly by and overslept his rights and permitted a judgment to be taken against him, which he might have prevented by the exercise of the slightest diligence, the law is not disposed to grant him relief. Heitmann v. Commercial Bank, 6 Ga. App. 584 (65 S.E. 590)." Florida Central R. Co. v. Luke, 11 Ga. App. 290, 293 ( 75 S.E. 270). "Where no defense is filed within the time required . . and a verdict is rendered in favor of the plaintiff, and a judgment is duly entered thereon, the judgment will not be vacated, even during the same term, at the instance of the defendant, where he shows no good reason in law for his failure to appear and file his defense within the time required. . The discretion vested by law in the trial judge is a legal discretion, and will be exercised only where the defendant shows a legal reason for its exercise. No such reason having been shown in this case, the judge properly denied the motion of the defendant to open the so-called default, set aside the verdict of the jury, and allow the defendant to interpose its tardy defense." Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (3) ( 93 S.E. 530). The movant in the present case failed to allege that she had exercised due diligence. "`A motion to set aside a verdict, based on matters not appearing on the face of the record, is not an available remedy to avoid the verdict, unless the motion is of such form and content as to be in substance a motion for a new trial, and complies with the rules governing such a motion. . A motion or petition to set aside a verdict and judgment should be distinguished from a technical motion to set aside a judgment alone. Civil Code (1910), §§ 5957-60 [1933, §§ 110-702 et seq.]; Firemen's Ins. Co. v. Oliver, 176 Ga. 80, 82 ( 167 S.E. 99).'" Wrenn v. Allen, 180 Ga. 613 (2) ( 180 S.E. 104). The motion in the present case is not in substance a motion for a new trial, nor does it comply with the rules governing such a motion, and, therefore, cannot be treated as a motion for a new trial. The motion of the defendant shows in substance that after being served with the petition and process, which gave her notice as to the cause of action and when an appearance should be made, she did nothing, although she recognized the nature of the action and believed that she had a valid defense, that in due time a verdict was returned for the plaintiff and judgment entered thereon, that during the interval between service and judgment she was sick and unable to attend to business matters, and spent some time in the hospital, leaving the same a few weeks after the rendition of the judgment based on a verdict, and that she has a defense to the action, the same being detailed in the motion, and will plead the same instanter, if permitted. She asks that the verdict and judgment be set aside. To the motion the plaintiff demurred, giving various reasons why the motion failed to show any legal basis for the relief sought, and why it should be dismissed. Under the well-established principles of law applicable to a motion of this nature, to set aside a verdict and judgment because of matters not appearing on the face of the record, as applied to the alleged facts as shown by the motion in the present case, it was not error for the trial judge to sustain the demurrer thereto and dismiss the motion.
Judgment affirmed. Worrill, J., concurs. Felton, J., concurs in the judgment.