Eison v. Coker

Jenkins, P. J. This was a motion to set aside a judgment, based on alleged unamendable defects appearing upon the face of the record. It appears that subsequent to the judgment against the movant, and at the term of court at which the judgment was entered, a previous motion to set aside was presented and sustained. On review, this court reversed the judgment of the trial court, holding that the demurrer of the plaintiff to the motion to set aside should have been sustained. Coker v. Eison, 40 Ga. App. 835 (151 S. E. 682). No effort was made to amend the previous motion, and the judgment by this court became final, and, as indicated by the record, the previous motion to set aside was dismissed in conformity with the judgment of this court. The instant motion was presented as a de novo proceeding, several terms of court thereafter. The court directed a verdict in favor of the plea of res judicata filed by the plaintiff, which set forth the previous adjudication on the former motion to set aside. Held: Since the previous motion to set aside and the present motion to set aside both seek to destroy the validity of the judgment attacked, and are therefore the same in purpose and effect and necessarily constituted the same cause of action, and no special reason appears why the ground of attack now made could not and should not have been embodied in the previous motion to set aside, under the ruling by this court in Farmer v. Baird, 35 Ga. App. 208 (132 S. E. 260), the court did not err in sustaining the plea of res judicata. Hamlin v. Johns, 41 Ga. App. 91 (15 S. E. 815). Judgment affirmed. Stephens and Bell, JJ., concur.