Brooke v. Farmers & Merchants Bank

Per Curiam. 1. The motion to dismiss the bill of exceptions is denied. 2. An unreversed judgment of a competent court cannot be collaterally attacked except for fraud or collusion, or for some defect apparent, upon the face of the record or pleadings. Civil Code (1910), §§ 3218 and 5966; Hammock v. McBride, 6 Ga. 178; Smith v. Cuyler, 78 Ga. 654 (2) (3 S. E. 406); Williams v. Lancaster, 113 Ga. 1020 (6) (39 S. E. 471). See also, in this connection, Civil Code (1910), §§ 4629, 4630, 5965; McArthur v. Matthewson, 67 Ga. 134. 3. In a money-rule proceeding, where C claims money In the hands of the sheriff, derived from the sale of certain property of B, sold by the sheriff under an execution in favor of A against B, and A intervenes and claims the fund, and C alleges in his petition that the judg [251] ment in favor of A (upon which the execution of A was based) was obtained through fraud, but the facts as set forth in the petition are insufficient to constitute fraud, it is not error for the court to hold that C could not go behind the judgment and show by extraneous evidence to the record that B did not in fact owe A the amount of the judgment, and to repel evidence offered by C to support his allegations of fraud. Decided June 30, 1921. Money rule; from Milton superior court — Judge Blair. August 27, 1920. N. A. Morris, Harold Hawkins, for plaintiffs in error. George F. Gober, H. L. Patterson, contra. (a) In the instant case the judgment was collaterally attacked solely on the ground of fraud in its procurement, and the only allegation in the petition as to fraud was that the judgment was taken for too great an amount (the amount of the excess being stated) and was therefore fraudulent “to the extent of this excess.” This allegation, if true, does not necessarily show fraud in the procurement of the judgment. The judgment may have been taken for too great an amount simply through accident or mistake, and a judgment cannot be collaterally attacked on the ground that it was procured through accident or mistake; and furthermore, the judgment was not attacked on such a ground. The allegations in the petition being insufficient to show fraud, it was not error for the court to exclude the evidence offered to prove such allegations. i. The court, sitting by consent without the intervention of a jury, committed no material error in its rulings upon the admissibility of evidence, and did not err in rendering the judgment excepted to. Judgment affirmed. Broyles, C. J. and Luke, J., concur. Bloodworth, J., dissents.