Opinion
37120.
DECIDED MAY 20, 1958.
Trover. Savannah City Court. Before Judge Alexander. December 20, 1957.
J. Walter Cowart, for plaintiff in error.
Robert J. Duffy, Nelson Haslam, contra.
The plaintiff in error's motion in arrest of judgment did not contain any valid grounds for the relief sought therein and was, therefore, without merit and the court did not err in denying that motion.
DECIDED MAY 20, 1958.
Mary Stefanick Ouellette sued Mrs. Hortense Stefanick in trover to recover three Government bonds. The petition was in part as follows: "First: That Mrs. Hortense Stefanick of said city and county the defendant in this action, is in possession of the following property to wit: One U.S. Government Bond Series G M-5, 769-540-G $1000, one U.S. Government Bond Series G M-5, 769-190-G $1000, one U.S. Government Bond Series G M-5, 769-792-G $1000, of the value of three thousand 00/100 dollars to which your petitioner claims title. Second: That said defendant refuses to deliver the above described property to your petitioner or pay him the profits thereof." After being duly served the defendant filed no defensive pleading in the action and in due course a default judgment was entered in favor of the plaintiff, the plaintiff electing to take a money verdict. At the same term, the defendant filed the following motion in arrest of judgment: "1. It appears from the record in said case that no cause of action is stated in plaintiff's petition, and the court did not have jurisdiction of the subject matter. 2. The record in said case shows the following defects: (a) That petitioner designates Bond Series G M-5, 769-540-G, G M-5, 769-790-G, and G M-5, 769-792-G; that defendant does not have possession of said bonds, and has not been in possession thereof, for over a year. (b) That the said bond numbers, being erroneous, renders the judgment void for want of sufficient description of the property sought to be recovered. (c) That due to the foregoing, the court was without jurisdiction of the subject matter, and plaintiff's petition was a nullity." After a hearing on the motion the judge denied the the motion in arrest and the defendant excepts.
Though the petition was a Jack Jones form, it was good as against a general demurrer and was not defective so that a legal judgment could not be rendered thereon. The plaintiff in error contends that since the bonds sued for are nonnegotiable and must by their nature contain the name of the owner of the bond, the descriptions of the bonds were inadequate because the petition did not show that the bonds were issued in the name of the plaintiff. This contention is without merit since, assuming for the sake of argument that the description of each bond should have contained the name of the person to whom the bond was issued, this information could have been supplied by an amendment to the petition. See Rollins v. Personal Finance Co., 49 Ga. App. 365 ( 175 S.E. 609).
A brief of the evidence did not accompany the record, but the bill of exceptions recites that, on the hearing, three Government bonds bearing different numbers from those sued for were exhibited to the court as being the bonds which the defendant had in her possession at that time and that the bonds as numbered in the petition were not in the possession of the defendant. This does not exclude the possibility that the defendant had been in possession of the bonds described in the petition and had wrongfully disposed of them or lost them, etc. Too, assuming for the sake of argument that the bonds exhibited by the defendant to the court at the time of the hearing on the motion were the bonds for which recovery was sought, the plaintiff could have by amendment shown in her petition the correct numbers of the bonds which were in the possession of the defendant. Small v. Wilson, 20 Ga. App. 674 (1) ( 93 S.E. 518).
Actually, the motion in arrest and the statements made by counsel on the hearing as set out by the bill of exceptions contained matters which were in defense of the plaintiff's action and which properly should have been set out in defensive pleadings filed in the action. Matters purely defensive and going in denial of the plaintiff's right to recover do not afford grounds to vacate or set aside a judgment. Thomas v. Bloodworth, 44 Ga. App. 44 (2) ( 160 S.E. 709). See also Aiken v. Richardson, 209 Ga. 837 ( 76 S.E.2d 393), and Hardwick v. Hatfield, 30 Ga. App. 760 (1) ( 119 S.E. 430).
Since nowhere in the motion was it alleged that the judgment sought to be arrested was procured by accident, mistake or fraud or through any defect not amendable appearing on the face of the record or pleadings or by perjury or any other irregularity, the motion was without merit. Chambless v. Oates Plumbing c. Co., 97 Ga. App. 80 ( 102 S.E.2d 83).
The court did not err in denying the motion in arrest of judgment.
Judgment affirmed. Quillian and Nichols, JJ., concur.