Opinion
13314.
MAY 17, 1940. REHEARING DENIED JUNE 14, 1940.
Motion to vacate judgment. Before Judge Hawkins. Cobb superior court. January 20, 1940.
John S. Matthews, for plaintiff. Morris Welsch, for defendant.
Where, pursuant to a notice to produce, a peremptory order by the court is issued, and after notice of that order a plaintiff fails to produce, judgment as of nonsuit should be rendered on motion. A motion to set aside such judgment, which shows these facts, is properly dismissed on demurrer.
No. 13314. MAY 17, 1940. REHEARING DENIED JUNE 14, 1940.
National Bondholders Corporation made a motion to vacate and set aside a judgment of Cobb superior court. The motion recited that the judgment was a nonsuit against the movant and in favor of the Austell Bank, resulting from the movant's failure to produce, in response to notice, certain described documents. The motion asserted that the judgment should be set aside for the following reasons: (1) It shows on its face that it is based upon "failure of plaintiff to respond to a notice to produce, served upon it by defendant Austell Bank." (2) No peremptory order of the court requiring response by plaintiff was entered, and such an order was essential before the judgment could be made. (3) It is contrary to evidence and without evidence to support it. (4) It resulted from fraud. The circumstances alleged to constitute fraud were that defendant's counsel knew that plaintiff was organized as one of the agencies for liquidation of the assets of a named bankrupt firm, that such assets were notes and mortgages in favor of Mortgage Guarantee Company of America, and that the lawyers generally in Fulton, DeKalb, and Cobb counties had general knowledge of such organization and purpose; that when the judgment was entered said attorney knew the plaintiff had no such papers as were called for by the notice, because (a) of the general knowledge of the lawyers; (b) he had heard counsel for plaintiff say its title came through the bankruptcy court; (c) in his pleadings and presentation of evidence on other hearings he had shown his familiarity with the title; (d) he had learned plaintiff's source of title through search of the title records of Fulton County, which contained deeds reciting the same; (e) he had examined the transfer of the security deed and heard depositions of a Mr. McCord concerning such transfer; and (f) on a former hearing the attorney had offered in evidence a paper containing the advertisement of foreclosure of the security deed. The motion averred that under these circumstances the attorney made the following statement to the court: "As attorney for the defendant, the Austell Bank, I do state as such attorney I believe those papers called for in that notice have been and are now in existence, and that they are material to the issues involved in this case; that they either have been or are in the possession, custody, and control of the plaintiff, National Bondholders Corporation, and/or its attorneys of record;" and that for "a supposed reputable attorney" to make such a statement under the circumstances so shocked the plaintiff's attorney as to disturb and confuse his judgment, and amounted to the securing of the judgment of nonsuit by fraud.
The defendant filed general and special demurrers to the motion. The court sustained them, and dismissed the motion. The plaintiff excepted.
Does the motion state any ground upon which the judgment of nonsuit should be set aside? It is observed that the only ruling or judgment attacked is the nonsuit, and that the various grounds of the motion must be considered as assaults upon this judgment only. While the motion discusses alleged deficiencies in the peremptory order which preceded and constituted the basis for the nonsuit, yet no attempt is made to set aside that order. It is contended that there was no peremptory order as required by the Code, § 38-801 et seq.; but the record contains an order which recites that "it is the order of the court" that the documents described are material, and that they should be produced. It is dated November 10, 1939, and is signed by the trial judge. This order conforms to the requirements of the statute. With such an order, the statute is clear on what shall follow. The code, § 38-803, declares: "If the plaintiff or his attorney, being so notified, shall fail or refuse to comply with such order, the court shall, on motion, give judgment against such plaintiff as in case of nonsuit." This record discloses that a proper order to produce was issued and notice thereof given plaintiff's attorney; that the plaintiff refused to comply with the order; and that on motion by defendant the judgment of nonsuit was rendered. It is apparent therefore that the statute demanded the judgment assaulted. The motion can not go behind the order to produce, without seeking to set aside that order. Being an order clearly within the power of the court to issue, and the record disclosing no invalidity, it is conclusively presumed to have been authorized and to be valid. It follows that the ground of the motion alleging noncompliance with the Code, § 38-806, will not be considered. The motion asserts that the judgment is contrary to evidence. As ruled above, the only support required is an order by the court to produce, failure after notice to obey such order, and motion for the judgment. This record discloses each of these requirements. Finally, the motion alleges that by reason of the various circumstances set out above the judgment resulted from fraud. Such circumstances do not constitute fraud or grounds for setting aside the judgment. It follows that the motion failed to allege any ground that would authorize setting aside the judgment, and that it was not error to dismiss the same on demurrer.
Judgment affirmed. All the Justices concur.