Lee v. Arnsdorff

Blandford, Justice. This was a petition filed by the defendant in error against the plaintiffs in error, praymg-an injunction, and also praying that a certain judgment rendered in a justice’s court against liim in favor of the plaintiffs in error be set aside and a perpetual injunction granted to prevent the plaintiffs in error from enforcing a certain execu [265] tion issued upon said judgment. The ground stated in the petition is that the judgment was obtained by fraud, in that the defendant in error, while the case was pending and before judgment, was prevented from appearing and defending the action by reason of the fraud on the part of Lee and his counsel in stating to him that the case would be dismissed, whereupon he called the attention of the justice of the peace to the matter, who assured him that he might rely upon said statements made to him by counsel for Lee. The parties went to trial upon the petition and answers, and the petitioner himself testified substantially that neither Lee, his counsel nor the justice of the peace had ever actually assured him that the case would be dismissed, but he thought it would be dismissed from what Strange said; but that the case was ready for trial at the April term, 1889, of the justice’s court, and that counsel for Lee (who was the plaintiff in the justice’s court) said to him the case would not be tried at the April term as he had some important business to attend to in an adjoining county; that lie (petitioner) agreed.to this, and that thereafter a judgment was reudered against him by the justice o'f the peace at the instance of the plaintiff, which judgment was dated the 4th of April. The evidence offered by the plaintiffs in error showed that while the judgment was dated April 4th, it was in fact rendered at the May term of the court, at which term the defendant in error was not present and did not appear to defend the suit. The judgment was entered upon the summons issued by the justice, but not upon the docket of the court. Section 457 of the code provides that justices of the peace have authority, and it is their duty, to keep a docket of all causes brought before them, in which must be entered the names of the parties, the returns of the officer, and the entry of the judgment, specifying its amount and the [266] day of its rendition. See 64 Ga. 566, 567. If this judgment had never been entered upon the docket of the justice of the peace (the place where it should have been entered), then the remedy of the defendant in error would not have been injunction, or a petition in the nature of a bill in equity. We do not say whether the judgmeut could have been entered nunc pro tunc or not, as that point is not before us. The verdict of the jury finding in favor of the defendant in error was unwarranted by the law and the evidence in the case; aud it was the duty of the court to have granted a uevv trial as asked for by the plaintiffs in error, as, in our opinion, there should have been no recovery in his behalf. We think, however, under the allegations in the petition, that the court did right to overrule the demurrer to the petition; but the evidence of the defendant in error makes an entirely different case from the allegations in his petition. Indeed, his own evidence makes no case for a recovery by him. The judgment is reversed.