Opinion
40511.
DECIDED JULY 8, 1964. REHEARING DENIED JULY 24, 1964.
Attachment, etc. Savannah City Court. Before Judge Oliver.
Richardson Doremus, John J. Sullivan, W. Ward Newton, for plaintiffs in error.
Kennedy Sognier, John G. Kennedy, Jr., contra.
1. The certificate of the clerk of the trial court to the record in the present case is in the usual form. "Accordingly, since it does not affirmatively appear from the clerk's certificate that the delay in transmission was caused by plaintiffs in error or their counsel, and since the certificate of the clerk is in substantial compliance with the provisions of Code Ann. § 6-1001 as to the correctness of the record certified, the motion to dismiss is without merit." Smith v. Barnett, 107 Ga. App. 849, 850 ( 132 S.E.2d 139).
2. All grounds for review incorporated in a prior writ of error, or grounds which were known, or by the exercise of ordinary diligence could have been known, and were not incorporated therein, will not be considered on a subsequent writ of error.
3. Where it appears on appeal that there was no good reason for anticipating a reversal of the judgment below, the defendant in error is entitled to damages for delay.
DECIDED JULY 8, 1964 — REHEARING DENIED JULY 24, 1964.
The present case is an attachment case wherein the declaration in attachment sought recovery on two notes, only one of which is in issue on this appeal. The present case was before this court in Rahal v. Titus, 107 Ga. App. 844 ( 131 S.E.2d 659) decided May 27, 1963, on a bill of exceptions certified January 17 and filed on January 18, 1963, in which this court affirmed the various rulings of the lower court, with one exception, and the judgment on both notes was affirmed with direction that a perpetual stay of execution as against the defendant (plaintiff in error) Rahal be entered on his plea of discharge in bankruptcy. The assignments of error, when the case was here before, are as follows:
"1. The court erred in granting defendant in error's motion for final judgment without hearing thereon.
"2. The court erred in granting defendant in error's motion for final judgment upon the basis of the unverified and unsubstantiated general allegations set out in the motion without there being attached to said motion copies of the pleadings or without there being specified and designated therein the pleadings of record upon which the motion is based.
"3. The court erred in granting defendant in error's motion for final judgment on the pleadings where the pleadings on file with the court in the case affirmatively show that the statements contained in the motion are contrary to the facts of record in that verified pleadings in addition to those mentioned in the motion raising issues of fact remain unresolved.
"4. The court erred in attempting to resolve the facts and reconcile the issues presented by the pleadings and in granting final judgment on the basis of pleadings of record which raised issues of fact.
"5. The court erred in overruling the general demurrer of plaintiff in error, Edmund E. Rahal, to the motion of defendant in error for final judgment on the pleadings without a hearing.
"6. The court erred in overruling the general demurrer of plaintiff in error, H. E. Martin, to the motion of defendant in error for final judgment on the pleadings without a hearing.
"7. The court erred in granting defendant in error's motion for final judgment against plaintiff in error, Edmund E. Rahal, and in resolving the issues raised by plaintiff in error Rahal's plea of failure of consideration summarily and in granting final judgment for defendant in error without a hearing on said `Plea of failure of consideration.'
"8. The court erred in granting final judgment against plaintiff in error, Edmund E. Rahal, without a hearing on the issues raised by his verified plea for `Discharge on account of bankruptcy.'
"9. The court erred in granting final judgment against plaintiff in error, H. E. Martin, without a hearing on his `Plea in abatement,' challenging the right of defendant in error to retain him as a party defendant in said case on the basis of an invalid alleged security bond.
"10. The court erred in granting final judgment against plaintiff in error, H. E. Martin, without a hearing on the issues raised by his plea in abatement alleging that the property for which defendant in error seeks to hold him accountable on his alleged surety bond was owned by persons other than his principal, Edmund E. Rahal.
"11. The court erred in granting final judgment against plaintiffs in error without disposing of the issues raised by claims to the property under levy filed by James H. Rahal and Georgia Skallet.
"12. The court erred in granting final judgment on the declaration in attachment without having first entered judgment based upon the verdict of the jury finding in favor of the plaintiff in attachment, J. DeWitt Titus (defendant in error) on the issues raised by the defendant in attachment, Edmund E. Rahal's traverse of the attachment.
"13. The court erred in permitting the clerk of the court to assign to the affidavit for attachment, traverse thereto and the declaration in attachment and pleas thereto the same docket number.
"14. The court erred in granting defendant in error final judgment against plaintiffs in error on the pleadings and summarily disposing of the verified, `Plea of failure of consideration' and `Plea for discharge on account of bankruptcy' filed by plaintiff in error, Edmund E. Rahal, and the separate `Pleas in abatement' filed by plaintiff in error, H. E. Martin; the separate general demurrers of plaintiffs in error to defendant in error's `Motion for final judgment,' and in resolving the issues and reconciling the facts presented by said pleas without notice or a hearing.
"Be it further remembered, that the sustaining of defendant in error's `Motion for final judgment' was granted by the court without notice thereof to counsel for plaintiffs in error or a hearing and that the order of the court granting defendant in error's final judgment was discovered by counsel of record for plaintiffs in error through their own initiative. This case, thus, was terminated by the court's order summarily granting final judgment for defendant in error on the 20th day of December, 1962."
The case is now before this court again with the same plaintiffs in error complaining of the striking of defendant Rahal's amendment (filed May 29, 1963) to his plea of failure of consideration, to the dismissal of his motion to strike (filed May 29, 1963), the paragraphs of the declaration in attachment alleging indebtedness on the note attached as Exhibit "B" to the declaration, and also of the refusal of the trial court to sustain a motion (filed June 18, 1963) to vacate and set aside the judgment. All of these pleadings were filed after the return of the remittitur from this court but before the same was made the judgment of the trial court. The motion to strike is as follows: "1. To strike paragraph 2 of the declaration in attachment in its entirety on the ground that the certain promissory note referred to in said paragraph designated as `Exhibit B' and attached to the declaration in attachment shows on its face that said undertaking is in the name of `Sports and Foreign Car Centre, Incorporated' through its president, Edmund E. Rahal, and is not an individual undertaking of Edmund E. Rahal against whom judgment is sought in the plaintiff's declaration in attachment. 2. To strike paragraph 2 of the declaration in attachment on the ground that Edmund E. Rahal, individually, is therein alleged to be indebted to plaintiff on an undertaking attached to the declaration in attachment, marked `Exhibit B', and said `Exhibit B' shows on its face to be an undertaking of `Sports and Foreign Car Centre, Incorporated' acting by and through its president, Edmund E. Rahal, in his capacity as president and not as a private and individual undertaking and that the same constitutes a misjoinder of parties defendant."
The amendment to the plea of failure of consideration elaborated in detail on the claim made in the original. The motion to vacate and set aside the judgment is as follows:
"1. Plaintiff moved for final judgment on his pleadings, a declaration and attachment which claimed an indebtedness against Defendant Rahal on two promissory notes, to wit: Note dated April 30, 1959, from Edmund E. Rahal to J. DeWitt Titus, $500.00 principal, due thirty days from date. Note dated May 1, 1959, from Edmund E. Rahal, President, Sports and Foreign Car Centre, Inc., to Titus, Harrington and Torrance, $3,238.62. Photostatic copy of said second note being attached hereto and by reference made a part of this petition.
"2. Defendant Rahal demurred generally to plaintiff's motion for final judgment, which demurrer was overruled and default judgment granted plaintiff on his motion, all without hearing or notice of hearing by the court in an ex parte proceeding on the 20th day of December, 1962.
"3. Defendant Rahal shows that the aforesaid judgment entered against him in his individual capacity was based on two notes, one of which is attached hereto and appears on its face to have been signed in his official capacity as President of Sports and Foreign Car Centre, Inc.
"4. Defendant shows that his general demurrer to plaintiff's declaration and attachment was overruled without a hearing or notice of hearing, and that judgment was entered against him in his absence; that he was not afforded the opportunity of pressing his objection to the defects in the note with respect to its execution and his lack of individual liability thereon owing to the absence of a hearing or notice of hearing; that the defects of which he complains appear on the face of the pleading and is not curable by amendment.
"5. Defendant shows by affidavit attached hereto signed by his counsel of record in this present motion that he was represented by other counsel at the time an answer was filed to the pleadings upon which the court rendered final judgment, and that attached to plaintiff's declaration and attachment was a copy of the note designated herein as Exhibit `A', and that beneath his signature was typed the word `individually'; that before signing said note, this word was scratched through and above it in ink was written the word `endorsed'; that the photostatic copy of said not attached to plaintiff's declaration and attachment did not reveal clearly that the word `individually' had been eliminated and, owing to this fact, the said attorney was not aware of this present defense nor by the exercise of ordinary care was alerted to suspect that said photostatic copy was not a true and accurate representation of the note actually signed by the defendant.
"6. Defendant shows that plaintiff circumvented a hearing on his motion for final judgment and defendant's demurrers thereto by obtaining said final judgment in an ex parte proceeding without notice to defendant, and that defendant was thereby deprived of an opportunity to examine the original pleading as filed with the court and relying upon the copy served upon him, which was not a true representation of the original pleading in the respect hereinabove enumerated, was circumvented and deprived from using the defenses herein set out prior to final judgment.
"7. Defendant shows that it affirmatively appears upon the face of the record that a judgment has been obtained against him individually, without a hearing upon the note signed in his official capacity as President of Sports and Foreign Car Centre, Inc., and that the copy of the note attached to the conformed copy of the declaration and attachment served upon him also shows upon its face that the word `individually' appears on the bottom of said note and by diligent inspection appears to complement the word `endorsed' rather than to have been eliminated from said note as the same appears on the original thereof."
The Exhibit "B" note attached to the copy of the declaration served upon the defendant Rahal, which is a special exhibit in the record and was introduced in evidence on the motion to vacate and set aside the judgment, is a heat process copy of the original. The note was a printed form note with four signature lines with "L.S." after each line. On the first line plainly appears in typing, "Sports Foreign Car Centre, Inc." On the second line dimly appears in pen and ink the signature, "Edmund E. Rahal, President." On the next and third line, there is nothing. On the fourth line there dimly appears the word "Endorsed" written in ink. Beneath this last line is typed the word "Individually," and a very faint line appears through this word. The copy of the note attached to the original declaration (typed in the present record) shows the word "individually" with a clear line drawn through it. Neither the copy attached to the original declaration, as shown by the present record, nor the copy attached to the copy of the declaration served upon the defendant Rahal, otherwise discloses that Edmund E. Rahal had endorsed the note on the back thereof. A copy of this same note attached to the motion to vacate and set aside the judgment and the copy attached to Rahal's amendment to his plea of failure of consideration, shows that the following endorsements are on the back of the note: "Edmund E. Rahal" on one line, and "Titus, Harrington and Torrance, by J. DeWitt Titus, Owner," on another line. In the defendant Rahal's plea for stay, filed July 11, 1961, was attached as an exhibit a copy of a page from Schedule A-4 of a bankruptcy petition in which this same note was described as "properly endorsed by myself and J. DeWitt Titus." On December 13, 1961, the defendant Rahal filed a plea of discharge in bankruptcy.
1. Headnote 1 requires no elaboration.
2. In his brief in this court, the plaintiff in error Rahal abandons his assignments of error on the dismissal of his motion to strike paragraph 2 of the declaration in attachment and on the dismissal of his amendment to his plea of failure of consideration. No doubt, he did this because he realized that after a judgment had been entered disposing of the entire case, it was too late to amend his pleadings, and too late to file motions to strike pleadings of the plaintiff. See, in this connection, Goldsmith v. Georgia R. Co., 62 Ga. 542; Southern Mutual Ins. Co. v. Turnley, 100 Ga. 296 ( 27 S.E. 975); Cureton v. Cureton, 120 Ga. 559 ( 48 S.E. 162); City of Columbus v. Anglin, 120 Ga. 785 (3) ( 48 S.E. 318); Real Estate Bank c. Co. v. Baldwin Locomotive Works, 145 Ga. 105 ( 88 S.E. 584); Land Development Corp. v. Union Trust Co., 180 Ga. 785 ( 180 S.E. 836); United States of America v. Hatcher, 185 Ga. 816 ( 196 S.E. 773); Swindell Co. v. Bainbridge State Bank, 4 Ga. App. 414 (1) ( 61 S.E. 847); Felker v. Johnson, 56 Ga. App. 659 ( 193 S.E. 472); Forrester v. Pullman Co., 66 Ga. App. 745, 750 ( 19 S.E.2d 330); Richards Associates, Inc. v. Studstill, 96 Ga. App. 270 (1) ( 99 S.E.2d 558).
Plaintiff in error, however, still insists upon his assignment of error on the overruling of his motion to set aside the judgment. In this connection, the plaintiff in error contends that his counsel was misled because the copy of the declaration served upon him did not show the word "individually" below the word "Endorsed" on the Exhibit "B" note had been marked through, and that due to this fact the attorney presumed that the plaintiff in error was liable individually on the note and was not aware of "this present defense nor by the exercise of ordinary care was alerted to suspect that said photostatic copy was not a true and accurate representation of the note actually signed by the defendant." What this present defense is, is not clearly stated, although we gather it would be the defense that the defendant Rahal was not liable individually on the note in question. That the defendant or his counsel were misled by this discrepancy between the original declaration and the copy served upon the defendant is not ground for setting aside a judgment duly rendered in said case. Sussan v. Smith, 52 Ga. App. 800, 803 (1) ( 184 S.E. 643). In the case just cited the original suit was for $285, and the copy served upon the defendant was for $90. The negligence of the client or his attorney in failing to examine the original pleadings in the case is not ground for setting aside the judgment. The neglect of the attorney was the neglect of the client, and furnished no reason for setting aside the judgment. Martin v. Parham, 14 Ga. App. 257 (2) ( 80 S.E. 674). It further appears that the motion to set aside the judgment itself shows that the defendant Rahal individually endorsed the note and is individually liable thereon. The record also discloses that this individual liability was known to defendant's counsel when his plea of bankruptcy was filed on July 11, 1961. The record, therefore, discloses that no such defense in fact actually existed as to the note in question.
"A motion . . . to set aside a judgment may be interposed, as provided by statute, where it appears from the face of the record or the pleadings that no cause of action exists against the defendant. Tolbert v. Tolbert, 41 Ga. App. 737 ( 154 S.E. 655); Code §§ 110-702, 110-703, 110-704." Smith v. Franklin Printing Co., 54 Ga. App. 385 (1) ( 187 S.E. 904); Harbin v. Hunt, 151 Ga. 60 (3) ( 105 S.E. 842); Jones v. Harris, 151 Ga. 129 (3) ( 106 S.E. 555); Roberts v. Keeler, 111 Ga. 181, 186 ( 36 S.E. 617); Kelly v. Strouse Bros., 116 Ga. 872 (5, 6) ( 43 S.E. 280). There is no contention that no cause of action exists in the present case. A judgment may not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as a matter of form. Code § 110-705; Smith v. Franklin Printing Co., 54 Ga. App. 385, supra; Mell v. McNulty, 185 Ga. 343 (1) ( 195 S.E. 181). While a motion to set aside a part of a judgment only may be maintained, Davis v. Davis, 206 Ga. 559 (2) ( 57 S.E.2d 673), Love v. National Liberty Ins. Co., 157 Ga. 259, 270 ( 121 S.E. 648), Land Development Corp. v. Union Trust Co., 180 Ga. 785, 789, supra, Martin v. Martin, 183 Ga. 787 ( 189 S.E. 843), and while it has been stated by this court that "[a] motion to set aside a default judgment, on account of insufficiency of the petition, operates precisely as a general demurrer to the petition would have operated; and any defect which could have been reached by general demurrer can, after a default judgment, be taken advantage of by a motion to arrest or set aside the judgment," Sheffield v. Causey, 12 Ga. App. 588 (2) ( 77 S.E. 1077) criticized in Rollins v. Personal Finance Co., 49 Ga. App. 365, 367 ( 175 S.E. 609) (Cf. Artope v. Barker, 74 Ga. 462 (1),) the plaintiff in error Rahal is precluded from raising such questions on this appeal. Through his attorney, as shown by the affidavit attached to the motion to set aside the judgment, he discovered the alleged discrepancy in the service copy and the original declaration when he was preparing the case for the prior appeal to this court. "A defendant who passes over, without demurring, a petition which is fatally defective in that it does not set forth a cause of action may still attack the same on this ground by an oral motion to dismiss the case at any time before verdict; and after verdict, by motion in arrest of judgment made during the term at which the judgment was rendered; or by assigning error on the judgment by a direct writ of error sued out in due time; or within three years from the date of the judgment by motion to set aside." Kelly v. Strouse Bros., 116 Ga. 872 (5a), supra. While the plaintiff in error may have abided his time and made a motion to set aside the judgment, yet, where a bill of exceptions is sued out to the judgment in due time, he could have, under prior appeal, attacked the judgment on the grounds that he has set forth in his motion to set aside the judgment. Having failed to do so, he cannot now prevail on such a motion. "All grounds for review incorporated in a prior writ of error, or grounds which were known, or by the exercise of ordinary diligence could have been known, and were not incorporated therein, will not considered on a subsequent writ of error." Lankford v. Milhollin, 201 Ga. 594 (2) ( 40 S.E.2d 376). An attack was made upon a judgment in that case based upon the failure of the cross actions to set forth causes of action. And, as has been most recently said by the Supreme Court in Pearle Optical of Monroeville, Inc. v. State Bd. of Examiners In Optometry, 219 Ga. 856, 857 ( 136 S.E.2d 371), "When the remittitur from this court was received by the trial court it was the duty of the court `in good faith' to carry `into full effect' the judgment of this court. Code § 6-1804. The judgment of affirmance was a final disposition of the case, even if the remittitur was not made the judgment of the trial court. Harrison v. Harrison, 208 Ga. 70 ( 65 S.E.2d 173). When a final judgment of the trial court is affirmed by this court, and not remanded to the trial court for further proceedings, the controversy is at an end; the rights of the parties, so far as they are involved in the litigation, are conclusively adjudicated. Further proceedings on the case in this court and in the trial court are precluded, and the judgment of the lower court is in full force and effect, precisely the same as if no appeal to this court had been taken. Pryor v. Pryor, 164 Ga. 7 (2) ( 137 S.E. 567)." The prior judgment in this case, in this court, of which we must take judicial notice, Lankford v. Holton, 78 Ga. App. 632 ( 51 S.E.2d 687), was such a final judgment, even though affirmed with direction that the judgment as against the plaintiff in error Rahal be permanently stayed as to the execution thereof. The trial judge did not err in overruling the motion to vacate and set aside the judgment.
3. The defendant in error has moved this court to award damages under Code § 6-1801 providing that 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain, which has been affirmed, when in the court's opinion, the cause was taken up for delay only. In this court the plaintiff in error abandoned two of his three assignments of error and in his original brief and three supplemental briefs cited on the questions at issue Code §§ 110-703, 110-704, and East Tenn., V. c. R. Co. v. Greene, 95 Ga. 35, 37 ( 22 S.E. 36), quoting therefrom as follows: "There is yet another class of judgments, such as are voidable. Among these are judgments obtained by fraud, perjury, collusion or mistake. Such judgment may be set aside at any time upon discovery of the fact upon which it may be impeached." There is no evidence in this case of fraud, perjury, collusion or mistake, nor was the motion to set aside the judgment made on such grounds. Further, as we have already shown, the "discovery of the fact" was made in time to have presented the question on the prior appeal of this case. In view of the motion for damages, we have quoted extensively from the facts disclosed by the record and the assignments of error in the previous appearance of this case in this court involving the same judgment of the trial court.
In his original brief, and first supplementary brief, plaintiff in error insisted that he was misled because the copy of the Exhibit "B" note on the copy of declaration served upon him had the word "individually" thereon, whereas this word was actually stricken, or marked through, on the copy of the note attached to the original declaration of attachment. This court, when examining the record of the previous appearance of this case, noted that the Exhibit "B" note attached to the declaration had thereon the personal endorsement of the plaintiff in error Rahal. This court then requested the clerk of the lower court to send a photostatic copy of the Exhibit "B" attached to the original declaration and expressly requested a copy of the endorsement appearing on the exhibit. As a result, it was discovered by the court that the record in the prior case was incorrect, and that the endorsement on the back of the note was not on the Exhibit "B" attached to the declaration. Plaintiff in error then filed his third supplementary brief in which he, for the first time, based his argument on this fact, rather than the fact that the word "individually" was different on the Exhibit "B" attached to the service copy and the original declaration, and in this third supplementary brief expressly states, "This service copy is identical in all respects with the original declaration and attachment, including exhibits, of file with the Clerk of the City Court of Savannah." This statement, and the facts in the record refute the entire contention that plaintiff in error was misled by the difference between the service copy and the original.
It is the opinion of this court that under the facts disclosed by the record, "there was no good reason for anticipating a reversal of the judgment below, and, consequently, the case must have been brought to this court for the purpose of delay only." Collins, Grayson Co. v. Mobile Fruit c. Co., 108 Ga. 752 ( 32 S.E. 667); Boggs v. Shadburn, 65 Ga. App. 683 ( 16 S.E.2d 234); Tanner v. Patterson, 52 Ga. App. 644 ( 184 S.E. 405).
Judgment affirmed with damages. Felton, C. J., and Frankum, J., concur.