Jarrett v. McLaughlin

Evans, J. To the levy of a mortgage fi. fa. on land four separate claims by different individuals were interposed. All of the claimants being represented by. the same counsel, they agreed with the plaintiff in fi. fa. that one only of the claim cases should be tried, and that the others should abide its result. An order of court to that effect was duly passed, that case was brought to trial, and the plaintiff in fi. fa. prevailed. The case was then taken to the Supreme Court for review, and the judgment of the court below was affirmed. (Taylor v. McLaughlin, 120 Ga. 703.) Subsequently the claimant in one of the other cases sought to prevent judgment against him from being entered up in accordance with the above-mentioned agreement, filing a motion (styled an “equitable plea”) to set aside that agreement. The sole ground of this motion was that the trial judge, in undertaking to perfect a brief of the evidence filed in the case which was-tried and lost, improperly inserted therein a recital of facts to which no witness testified, and that the changes so made in the brief of the evidence presented a state of facts which constrained the judgment of affirmance rendered by the Supreme Court. This motion was overruled and judgment against the claimant entered up accordingly, to which action on the part of the trial court exception is taken. Held, that there was no merit in the motion to set aside the agreement of the parties, inasmuch as the plaintiff in error voluntarily chose to consent that his case should abide the result of that brought to.trial and final judgment, whatever that result might be or however erroneously or through whatever misfortune it might be reached ; and therefore he stands in no better position than does the losing party to that case, as to whom the judgment therein is certainly final. Judgment affirmed. All the Justices concur, except' Simmons, C. J., absent.