Opinion
16665.
JUNE 15, 1949.
Petition for injunction, etc. Before Judge Mallory C. Atkinson. Bibb Superior Court. March 8, 1949.
Robert S. Horne, for plaintiff.
Harry S. Strozier and D. L. Churchwell, for defendant.
The payment of notes by the obligee therein is a matter for defense in an action to recover on the notes. A judgment on such notes by default, in a court of competent jurisdiction, where the records of the court show service upon the obligee, is not void. If, after notice of the judgment, the complainant allows three years to pass without seeking to set aside the judgment complained of, equity will grant no relief.
No. 16665. JUNE 15, 1949.
The petition of Mrs. Annie Turner against Norman A. Avant in substance alleged: On October 24, 1928, the plaintiff and her husband borrowed from the defendant $896, and executed a deed with power of sale to secure the payment of 64 notes of $12.50 each and 6 notes of $16 each. On June 29, 1932, the plaintiff and her husband paid the remaining unpaid notes, and an order was duly entered on the security deed by the defendant to the clerk of the superior court, reciting that the debt secured by the deed had been fully paid, and directing a cancellation thereof, which was duly entered of record on July 11, 1932. At the time of the payment, the defendant did not deliver 32 paid notes of $12.50 each, and stated that the notes were lost and he would mail them if they were ever found. The plaintiff and her husband later demanded the notes, and the defendant again told them that he could not find them. At the November term, 1944, of the municipal court of Macon the defendant filed suit on the 32 notes. The records of the court show that the suit was served on the plaintiff and her husband by residence service on November 7, 1944. The defendant obtained a judgment against the plaintiff and her husband by default on November 22, 1944, for $400 principal and $480 interest. The first the plaintiff knew of the suit was on September 18, 1946, when a deputy sheriff of the municipal court levied on her household furniture. She and her husband went to see the defendant, and he told them it was all a mistake and that they could forget about it. In October, 1947, however, the sheriff of the municipal court hauled her household property to the courthouse in Bibb County, and the property was advertised and sold. The home of the plaintiff and her husband was levied on April 5, 1948, and sold May 4, 1948. The purchaser found that the judgment and sale were occasioned by fraud and refused to pay his bid. The defendant wilfully, wrongfully, and fraudulently procured the judgment against the plaintiff and her husband, knowing that the indebtedness sued on had been paid, as evidenced by the satisfaction on the records of the office of the clerk of the superior court, and he knowingly, wrongfully, and fraudulently had the plaintiff's furniture sold and the home of the plaintiff and her husband. Neither the plaintiff nor her husband was served with a copy of the suit issued from the municipal court, and that was the reason they did not appear and defend. The plaintiff has suffered actual damages in the sum of $2826 (the alleged value of the furniture), and she asks punitive damages of $10,000, and that the defendant be temporarily and permanently enjoined from collecting his judgment.
The petition was sanctioned by the trial judge and a rule nisi issued to the defendant. No temporary restraining order was granted. The demurrers of the defendant were sustained and the petition dismissed. The exception is to that judgment.
Under the allegations of the petition, the Municipal Court of Macon was a court of competent jurisdiction to render the Judgment complained of in the present action. It is alleged that the records of that court show service upon the defendants, one of whom is the present plaintiff.
A judgment of a court of competent jurisdiction is conclusive between the parties until such time as it shall be reversed or set aside. Code, §§ 38-623, 110-501. Actions to set aside judgments must be brought within three years from the rendition thereof. § 3-702. Equity may set aside judgments of a court of competent jurisdiction for fraud, accident, or mistake, or the acts of the adverse parties unmixed with fraud, neglect, or fault of the petitioners. §§ 37-219, 37-220. Equity will not, by injunction, restrain the enforcement of a judgment when the defendant in execution had knowledge and notice of such judgment within the period of limitations, and negligently failed to take any action to have such judgment vacated or set aside within the time provided by law. Field v. Jordan, 124 Ga. 685 ( 52 S.E. 885).
In this case it appears that the judgment against the plaintiff was rendered in November, 1944, and in September, 1946, a levy was made on her property. While it is alleged that the plaintiff in this case was not served with a copy of the process from the municipal court, and that the debt had in fact been paid, her petition shows that she had ample notice of the judgment against her within the statute of limitations. She should have instituted appropriate proceedings to have the judgment against her vacated or set aside. This she failed to do, and more than three years elapsed between the rendition of the judgment in the municipal court and the institution of the present action. The plaintiff alleged that after the levy upon her property she and her husband went to see the defendant, and that he stated that "it was all a mistake" and that "they could forget about it." As was said in Field v. Jordan, supra, "instead of relying upon this naked promise to treat the judgment as a nullity, defendants in execution, within the statutory period allowed for instituting proceedings to set aside judgments, should have begun proceedings to set aside or vacate this judgment." In Crane v. Stratton, 185 Ga. 235 ( 194 S.E. 182), it was said that, "where complainants have negligently allowed three years to pass without seeking to set aside the judgment complained of, equity will grant no relief." Rawleigh v. Seagraves, 178 Ga. 459 ( 173 S.E. 167).
The plaintiff does not now move to vacate or set aside the judgment against her. On the contrary, she sues for damages and asks that the judgment be restrained. She did not avail herself of the remedies provided by law after she acquired notice of the judgment. She cannot maintain an action for damages growing out of proceedings to enforce a judgment which is now valid and binding upon her, nor can she maintain an action to enjoin it.
Judgment affirmed. All the Justices concur.