Lanier v. Walden

Luke, J. 1. The motion to dismiss the bill of exceptions is denied. 2. “ While, under the code of this State, a judgment cannot ordinarily be set aside except for defects appearing upon the face of the record, there are instances in which motions so designated have been granted where based upon matters not so appearing. Whether such a petition be technically a motion to set aside a judgment, or denominated by other .appropriate name under a proper proceeding by petition with rule nisi or process or service thereon, whenever such a petition is [9] predicated upon matters extraneous to tlie record, it must ordinarily be filed at the term during which the judgment was rendered, inasmuch as such a petition partakes of the nature of a motion for new trial.” Gillespie v. Farkas, 19 Ga. App. 158 (91 S. E. 244), and cases cited. Decided March 6, 1923. G. B. Lanier, R. P: Jackson, for plaintiff. Saffold & Stallings, for defendant. 3. In this case suit was instituted upon promissory notes, and at the trial term the answer of the defendant was stricken and judgment was entered in favor of the plaintiff. After the adjournment of the term and before the convening of the next term of the court the defendant filed a petition seeking to set aside the judgment, upon the ground that he had a meritorious defense pleaded to that part of the suit which prayed for attorney’s fees, etc. “ Where a motion to set aside a judgment alleged to have been obtained by fraud is presented to the trial judge in vacation, after the term of court at which the verdict and judgment was entered, the court will not have jurisdiction to entertain the motion or grant a rule nisi thereon.” Gillespie v. Farkas, supra, and cases cited in paragraph 3 of the decision. It follows that the court erred in sustaining the motion to set aside the judgment and reinstate the case upon the trial docket. Judgment reversed. Broyles, G. J., and Bloodworth, J., concur.