O'Neal v. Neal Veneering Co.

Bussell, C. J. In this proceeding the plaintiff sought to set aside a consent decree which had been entered nearly three years previously' in the superior court of Seminole County, upon the ground that such decre.e had been obtained by fraud and imposition practiced upon its counsel at the time such decree was rendered. It was prayed that the present proceeding be “filed as a part of the original case,” and in the rule nisi issued upon the 'petition in the present instance the “within petition” was ordered “filed as a part of the pleadings referred to in said petition.”- The petition or motion to set aside the decree was filed in vacation, and the rule nisi thereon was issued in vacation. At the he.aring in term time the defendant demurred and moved to strike the petition, on the ground, among others, “that it presented no cause of action, because filed in vacation.” This motion was overruled. The court erred in overruling the motion to dismiss. “A judge of the superior court has no authority to entertain a motion made in vacation to set aside a judgment of that court.” Davis v. Bennett, 158 Ga. 368 (123 S. E. 11), rind cit.; Davis v. Bennett, 159 Ga. 332 (125 S. E. 714). This petition is a motion to set aside - the judgment, and is not an independent plenary equitable petition. As ruled by Mr. Justice Evans, speaking for the court in Malsby v. Studstill, 127 Ga. 726, 728 (56 S. E. 988), “If it was begun in vacation, the proceeding is a nullity, because a judge of the superior court has no authority to entertain a motion made in vacation to set aside a judgment of that court. Haskens v. State, 114 Ga. 837 [40 S. E. 997]; Chapman v. State, 116 Ga. 598 [42 S. E. 999].” The error in overruling the motion to dismiss rendered further proceedings in the ease nugatory, and makes it unnecessary to rule upon the merits of the demurrers interposed by the defendant. Judgment reversed. All the Justices concur.