- Ground for new trial generally, § 5-5-20 et seq.
Annulling of conveyances for fraud and relief against awards, judgments, and decrees obtained by imposition, § 23-2-60.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 60, and annotations pertaining thereto, see 28 U.S.C.
Law reviews.- For article discussing collateral attack on contempt sanctions based upon constitutionally invalid injunctions, see 7 Ga. L. Rev. 246 (1973). For article examining waiver of objections to venue and lack of personal jurisdiction by default, see 12 Ga. L. Rev. 181 (1978). For article as to prevention of malpractice claims and litigation, see 16 Ga. St. B.J. 68 (1979). For article, "Insuring a Party's Second Chance," see 16 Ga. St. B.J. 177 (1980). For survey article citing developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on domestic relations, see 34 Mercer L. Rev. 113 (1982). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of appellate practice and procedure, see 36 Mercer L. Rev. 79 (1984). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For article, "Trial Practice and Procedure," see 53 Mercer L. Rev. 475 (2001). For annual survey article on legal ethics, see 56 Mercer L. Rev. 315 (2004). For annual survey of Administrative Law, see 57 Mercer L. Rev. 1 (2005). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For annual survey of law on insurance, see 62 Mercer L. Rev. 139 (2010). For article, "Appellate Practice and Procedure," see 63 Mercer L. Rev. 67 (2011). For annual survey on business associations, see 70 Mercer L. Rev. 19 (2018). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 71 Mercer L. Rev. 327 (2019). For note discussing reluctance of the courts of this state to grant appeals when an overruled motion for new trial is not enumerated as error, in light of Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968), appearing below, see 5 Ga St. B.J. 269 (1968). For note, "Default Judgments Under the Federal Rules of Civil Procedure and the Georgia Civil Practice Act," see 7 Ga. St. B.J. 385 (1971). For note, "Dismissal with Prejudice for Failure to Prosecute: Visiting the Sins of the Attorney upon the Client," see 22 Ga. L. Rev. 195 (1987). For comment on Marsh v. Northland Ins. Co., 242 Ga. 490, 249 S.E.2d 205 (1978), appearing below, see 31 Mercer L. Rev. 359 (1979).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 5957 and 5965 and under former Code 1933, § 37-219 and Ch. 7, T. 110, are included in the annotations for this Code section.
Rule includes both equitable and legal grounds.
- Since the 1986 amendment, both equitable and legal grounds for setting aside a judgment are now included in O.C.G.A. § 9-11-60. Fulton v. State, 183 Ga. App. 570, 359 S.E.2d 726 (1987).
Rooker-Feldman doctrine.
- O.C.G.A. § 9-11-60 establishes a method for attacking Georgia state court judgments, but only in Georgia state courts; this is in accord with the Rooker-Feldman doctrine. Rice v. Grubbs, 158 Fed. Appx. 163 (11th Cir. Nov. 9, 2005).
Legislative intent of O.C.G.A. § 9-11-60 was to make a comprehensive determination of procedures for attacks on judgments. Payne v. Shelnutt, 126 Ga. App. 598, 191 S.E.2d 487 (1972); Jordan v. G.A.C. Fin. Corp., 136 Ga. App. 641, 222 S.E.2d 149 (1975).
Federal Arbitration Act.
- It was error to refuse to enforce a foreign judgment against a company that was based on an arbitration award. The company had not sought to vacate the arbitration award within the three-month period allowed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the company could not circumvent this limitation period by raising a claim under O.C.G.A. § 9-11-60. McDonald v. H & S Homes, LLC, 290 Ga. App. 103, 658 S.E.2d 901 (2008).
Means of attack prescribed in this section are exclusive.
- This section specifies the manner in which a judgment may be attacked, and the means prescribed herein are exclusive. Henry v. Adair Realty Co., 141 Ga. App. 182, 233 S.E.2d 39 (1977); Henry v. Polar Rock Dev. Corp., 143 Ga. App. 189, 237 S.E.2d 667 (1977).
Civil judgments cannot be attacked by motion for reconsideration.
- This section provides the exclusive methods by which civil judgments may be attacked, and a motion for reconsideration is not one of the methods enumerated therein. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979).
Direct appeal is not covered by section.
- This section deals with methods of attack on judgments other than by direct appeal; it is not necessary that a judgment be attacked by one of the methods provided by this section as any final judgment may be timely appealed. Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (1971).
Post-judgment motions are not permitted to raise arguments or introduce evidence previously known to the parties but not addressed at trial. Kim v. McCullom, 222 Ga. App. 439, 474 S.E.2d 654 (1996).
Term "face of the record" has never been held to include papers involved in the litigation that are not a part of the record kept under the authority and direction of the clerk of the court in which the suit is pending; the phrase itself refers to the court record, not the file built up by litigants for the litigants personal use. Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955) (decided under former Code 1933, Ch. 7, T. 110).
Application to both foreign and domestic judgments.
- This section applies to both domestic judgments and judgments from other states. Logan v. Nunnelly, 128 Ga. App. 43, 195 S.E.2d 659 (1973).
Verdicts and judgments in divorce cases.
- Ga. L. 1967, p. 226, §§ 26, 27, and 30 and Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. §§ 9-11-40 and 9-11-60) now embrace all situations that Ga. L. 1935, p. 481, relating to setting aside verdicts and judgments in divorce cases, was designed to meet. Bradberry v. Bradberry, 232 Ga. 651, 208 S.E.2d 469 (1974).
O.C.G.A.
§ 9-11-60 not applicable to action for child support arrearages under foreign state judgment. - Paragraph (a)(1) of O.C.G.A. § 9-11-60 and O.C.G.A. § 9-3-20 did not apply to a Uniform Reciprocal Enforcement of Support Act action to enforce arrearages on a foreign child support order. Georgia Dep't of Human Resources v. Deason, 238 Ga. App. 853, 520 S.E.2d 712 (1999).
Enforcement of support order.
- When the defendant failed to investigate paternity despite his suspicion that he was not the father of all his wife's children, and when his failure to investigate was not caused by any alleged misrepresentation by his former spouse, he failed to show either actionable fraud or that his lack of investigation was unmixed with his own "negligence or fault," and the trial court erred in staying the enforcement of the out-of-state support order. Department of Human Resources v. Fenner, 235 Ga. App. 233, 510 S.E.2d 534 (1998).
Original order on child custody modification not set aside when corrected.
- Trial court's order amending an earlier child custody modification judgment because the order contained terms inserted by the mother's counsel and not pronounced by the trial court in the court's oral ruling was proper under O.C.G.A. § 19-9-3(b) based on the evidence showing that the original order did not accurately reflect the trial court's ruling; the trial court did not set aside the court's original order under O.C.G.A. § 9-11-60(d)(2) but left much of the original order intact. Epstiner v. Spears, 340 Ga. App. 199, 796 S.E.2d 919 (2017).
Prior provisions carried forward.
- Provisions of former Code 1933, §§ 110-702 and 110-705 are substantially carried forward in subsection (d) of this section. Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979).
Attack on a void judgment may be made directly in equity or collaterally. Wasden v. Rusco Indus., Inc., 233 Ga. 439, 211 S.E.2d 733 (1975), overruled on other grounds, Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993).
Three methods prescribed for direct attack.
- Omitting judgments void on the judgments' face and clerical errors, direct attack must be made on a judgment in one of three ways: a motion for new trial must comprise an error that does not appear on the face of the record; a motion to set aside must attack an error that does appear on the face of the record; and fraud, accident, or mistake may be raised only by an equitable petition in the appropriate superior court, and are subject to a three-year statute of limitation. Payne v. Shelnutt, 126 Ga. App. 598, 191 S.E.2d 487 (1972).
Procedures for reaching defects in a judgment, as opposed to a levy of execution, are controlled by O.C.G.A. § 9-11-60 and must be made by either motion for new trial, motion to set aside for a nonamendable defect appearing on the face of the record, or petition in equity. Mason v. Fisher, 143 Ga. App. 573, 239 S.E.2d 226 (1977).
Direct action required to vacate void judgment.
- Because an attack on a punitive damage award was an impermissible collateral attack, a petition to vacate a void judgment was properly dismissed as the petition could only be brought as a direct action. Walker v. Blackwell, 259 Ga. App. 324, 577 S.E.2d 24 (2003).
Jurisdiction of probate court to vacate judgment probating will.
- Both prior to and since enactment of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), the probate court has had jurisdiction to vacate the court's judgment probating a will in solemn form that was obtained by fraud or other irregularity that renders the judgment voidable. Dennis v. McCrary, 237 Ga. 605, 229 S.E.2d 367 (1976).
Trial court had to determine whether attorney was authorized to accept service.
- Trial court abused the court's discretion by dismissing a landlord's suit against a tenant under O.C.G.A. § 9-11-60 for lack of personal jurisdiction because a determination was necessary as to whether a law firm who accepted service was authorized to represent the tenant before the trial court determined that the court lacked personal jurisdiction over the tenant. Endover Palisades, LLC v. Stuart, 324 Ga. App. 90, 749 S.E.2d 381 (2013).
Presumption of validity of judgment.
- There is a presumption that every fact necessary to make a general judgment by a court of competent jurisdiction valid and binding was before the court. Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 200 S.E.2d 146 (1973).
Judgment not void on judgment's face valid until set aside.
- Until it is set aside as prescribed by this section, a judgment not void on the judgment's face is a valid and subsisting judgment, which allows the plaintiff to refile the plaintiff's petition. Camera Shop, Inc. v. GAF Corp., 130 Ga. App. 88, 202 S.E.2d 241 (1973).
Court disregards label of motion and looks to substance.
- Because the defendant chose to denominate the motion as one to vacate and set aside the summary judgment, but the motion was nothing more than a request for a reconsideration of the trial court's summary judgment award, the motion did not extend the time for the filing of a notice of appeal, and therefore the notice of appeal was not timely filed. Perryman v. Georgia Power Co., 180 Ga. App. 259, 348 S.E.2d 762 (1986), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).
Arrest of judgment motion cannot be used to extend time for civil appeals.
- Exclusive method by which civil judgments may be attacked is set forth in O.C.G.A. § 9-11-60 and an arrest of judgment is not enumerated therein. Thus, even though O.C.G.A. § 5-6-38 lists "arrest of judgment" as one of the motions that extends the time for filing a notice of appeal, it apparently refers to criminal appeals. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986); Willard v. Wilburn, 203 Ga. App. 393, 416 S.E.2d 798, cert. denied, 203 Ga. App. 908, 416 S.E.2d 798 (1992).
Judgment infected by perjury.
- If a judgment has allegedly been infected by perjury, the remedy is the institution of a direct attack upon that judgment and not a civil action against the alleged perjurer. Shepherd v. Epps, 179 Ga. App. 685, 347 S.E.2d 289 (1986).
Trial court had no authority in law to cancel allegedly dormant judgments upon the record, and the court's denial of a child's motion to do so on behalf of the child's deceased parent was not erroneous because collateral attacks on judgments are permissible only if the judgment is void on the judgment's face or if the judgment or other parts of the record contain a clerical mistake or error; in addition, because this motion to set aside judgment was not brought within the three-year period beginning at the entry of the judgment prescribed in O.C.G.A. § 9-11-60, the movant cannot get relief. Cronic v. State, 172 Ga. App. 675, 324 S.E.2d 533 (1984).
Husband did not waive right to jury trial.
- Trial court abused the court's discretion in denying a husband's motion for a new trial and to set aside the decree of divorce as the husband's actions in showing up 45 minutes late in answering a calendar call did not amount to either an expressed or implied waiver of an asserted right to a jury trial, and the husband did not expressly consent to a bench trial. Walker v. Walker, 280 Ga. 696, 631 S.E.2d 697 (2006).
Attempt to set aside time barred in divorce action.
- Even if the plaintiff had the standing to ask for the 2012 divorce decree to be set aside, both Georgia's general fraud statute of limitation and the statute of limitation to set aside a judgment based on fraud had run before the plaintiff filed the complaint on September 22, 2017; therefore, the trial court properly granted the defendant's motion to dismiss the complaint. Copeland v. Miller, 347 Ga. App. 123, 817 S.E.2d 692 (2018).
Postjudgment attack on forfeiture.
- Defendant's motion in a criminal proceeding for return of money that was forfeited in a civil proceeding was properly denied because the proper method of making a postjudgment attack on a forfeiture is through O.C.G.A. § 9-11-60. Youree v. State, 220 Ga. App. 453, 469 S.E.2d 208 (1996).
Surety sued a city after the cash bond the surety posted was forfeited. The suit was properly dismissed based on sovereign immunity; if the bond forfeiture was improper, under O.C.G.A. § 9-11-60(d), the surety's remedy lay not in a suit against the city, but in a motion in the traffic court to set aside the forfeiture. Watts v. City of Dillard, 294 Ga. App. 861, 670 S.E.2d 442 (2008).
Fraud not shown.
- Trial court properly granted summary judgment to an ex-husband as to the ex-wife's and mother's action to set aside or modify a divorce decree because they did not present evidence that the ex-husband committed any act of fraud concealing any act as there was no genuine issue of material fact that the former spouses did not own any real estate at the time of their divorce and that they knowingly remained together even after the divorce. Robertson v. Robertson, 333 Ga. App. 864, 778 S.E.2d 6 (2015).
Res judicata and estoppel by judgment will not bar either a motion to set aside a judgment or an extraordinary motion for new trial based upon newly discovered evidence. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
Consideration with nolle prosequi.
- Trial court properly vacated the court's first nolle prosequi order entered pursuant to O.C.G.A. § 17-8-3 and substituted one entered in open court almost two years later; although a trial court could vacate an order of nolle prosequi at will only during the term of court, and the trial court here indisputably vacated the court's order outside the term, this situation was governed by O.C.G.A. § 9-11-60, and treating the second ground of the defendant's motion as a motion to set aside under O.C.G.A. § 9-11-60(d)(2), the trial court was within the court's rights in essentially modifying the court's order under § 9-11-60(h). Montgomery v. State, 259 Ga. App. 153, 575 S.E.2d 917 (2003).
Prior decision binding precedent.
- If a corporation was able to prove a breach of a consent judgment by the corporation's previous owner, the corporation could not show actual damages and was limited to recovering nominal damages because the corporation's claim was foreclosed by a previous decision of the court of appeals; that case was binding precedent and established that regardless of the owner's proof of claim, a sale of a motel would not have occurred, precluding the corporation's recovery of actual damages on the corporation's breach of contract claim. Duke Galish, LLC v. Manton, 308 Ga. App. 316, 707 S.E.2d 555 (2011).
As property owners' application for a discretionary appeal as to the trial court's order that awarded a business entity attorney fees was previously denied, that decision was res judicata with respect to the issue of the fees; accordingly, the owners could not seek a second review by appealing the award of fees. Elrod v. Sunflower Meadows Dev., LLC, 322 Ga. App. 666, 745 S.E.2d 846 (2013).
Power of court to set aside judgment in same term does not extend to a domesticated foreign judgment.
- Inherent power of a Georgia court to set aside a judgment within the same term of court in which the judgment was entered does not extend to a foreign judgment domesticated under O.C.G.A. § 9-12-130 et seq. Lemcon USA Corp. v. Icon Tech. Consulting, Inc., 301 Ga. 888, 804 S.E.2d 347 (2017).
Dismissal of appeal based on lack of appellate jurisdiction.
- Because an appeal by the parents from the juvenile court's order denying their motion to rescind and re-enter the dismissal order under O.C.G.A. § 9-11-60(g) on the grounds that the trial court failed to give proper notice of the court's decision, in accordance with O.C.G.A. § 15-6-21(c), failed to challenge the juvenile court's error in denying the motion, but rather, challenged specific rulings entered by the juvenile court in the deprivation proceedings, denial of the motion to rescind and re-enter was affirmed on appeal as the appellate court lacked jurisdiction to consider the errors asserted by the parents in the underlying deprivation case. In the Interest of S.C., 283 Ga. App. 387, 641 S.E.2d 618 (2007).
Failure to prove damages nonamendable defect.
- Trial court erred in entering a default judgment in the amount of $15,000 against a home inspector because a purchaser's damages were unliquidated, and other than the prayer in the purchaser's complaint for $15,000, the purchaser made no showing of the amount of damages; the purchaser's failure to prove the purchaser's damages constituted a nonamendable defect within the meaning of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, under O.C.G.A. § 9-11-60(d)(3). Strickland v. Leake, 311 Ga. App. 298, 715 S.E.2d 676 (2011).
Motion to compel arbitration properly denied.
- In a class action suit seeking to hold a lender liable for payday loans, the trial court properly ruled that the lender could not compel arbitration and denying the lender's motion to compel as moot because the trial court's earlier ruling striking the lender's arbitration defense as a discovery violation sanction was an adjudication on the merits and carried a res judicata effect. Ga. Cash Am. v. Greene, 318 Ga. App. 355, 734 S.E.2d 67 (2012).
Relief not available due to garnishee's negligence.
- Trial court erred in ruling that the court's acts, specifically counsel's telephone conversation with the garnishee's registered agent, warranted setting aside the default judgment because the agent was made aware that the creditor was pursuing the garnishment action against the garnishee, but neither the agent nor the garnishee did anything in response until moving for relief from default nine months after default judgment was entered and, thus, the garnishee's negligence precluded relief from default. Principal Lien Servs., LLC v. NAH Corp., 346 Ga. App. 277, 814 S.E.2d 4 (2018), cert. denied, No. S18C1449, 2019 Ga. LEXIS 35 (Ga. 2019).
Cited in Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968); Burson v. Bishop, 117 Ga. App. 602, 161 S.E.2d 518 (1968); Kitchens v. Clay, 224 Ga. 325, 161 S.E.2d 828 (1968); Golden Star, Inc. v. Broyles Ins. Agency, Inc., 118 Ga. App. 95, 162 S.E.2d 756 (1968); Keith v. Byram, 118 Ga. App. 364, 163 S.E.2d 753 (1968); Boockholdt v. Brown, 224 Ga. 737, 164 S.E.2d 836 (1968); City Dodge, Inc. v. Atkins, 118 Ga. App. 676, 164 S.E.2d 864 (1968); O'Leary v. Smith, 225 Ga. 8, 165 S.E.2d 730 (1969); Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Singleton v. Rary, 119 Ga. App. 559, 167 S.E.2d 740 (1969); Gibson Prods. Co. v. Addison, 120 Ga. App. 37, 169 S.E.2d 374 (1969); Barrett v. Asbell, 225 Ga. 521, 169 S.E.2d 779 (1969); Hawes v. Bigbie, 120 Ga. App. 294, 170 S.E.2d 302 (1969); Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969); Franklin v. Sea Island Bank, 120 Ga. App. 654, 171 S.E.2d 866 (1969); Martell v. Atlanta Biltmore Hotel Corp., 120 Ga. App. 880, 172 S.E.2d 842 (1969); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Srochi v. Kamensky, 121 Ga. App. 518, 174 S.E.2d 263 (1970); Northern Freight Lines v. Fireman's Fund Ins. Cos., 121 Ga. App. 786, 175 S.E.2d 104 (1970); Jordan v. Plott, 121 Ga. App. 727, 175 S.E.2d 148 (1970); Newton v. Newton, 226 Ga. 440, 175 S.E.2d 543 (1970); D.H. Overmyer Co. v. Joe Summers Roofing Co., 121 Ga. App. 804, 175 S.E.2d 880 (1970); Carver v. Cranford, 122 Ga. App. 100, 176 S.E.2d 272 (1970); Mitchell v. Mitchell, 226 Ga. 678, 177 S.E.2d 89 (1970); American Liberty Ins. Co. v. Sanders, 122 Ga. App. 407, 177 S.E.2d 176 (1970); Martin v. Prior Tire Co., 122 Ga. App. 637, 178 S.E.2d 306 (1970); Grey v. Roboscope Int'l, Ltd. of Ga., Inc., 122 Ga. App. 725, 178 S.E.2d 334 (1970); Johnson v. McCauley, 123 Ga. App. 393, 181 S.E.2d 111 (1971); Walker v. Powell, 123 Ga. App. 498, 181 S.E.2d 501 (1971); King v. Schaeffer, 123 Ga. App. 531, 181 S.E.2d 700 (1971); Worley v. Travelers Indem. Co., 124 Ga. App. 64, 183 S.E.2d 91 (1971); Paine v. Lowndes County Bd. of Tax Assessors, 124 Ga. App. 233, 183 S.E.2d 474 (1971); Smith v. Smith, 228 Ga. 311, 185 S.E.2d 78 (1971); Kerr v. Noble, 124 Ga. App 722, 185 S.E.2d 807 (1971); Sixth St. Corp. v. City Stores Co., 229 Ga. 99, 189 S.E.2d 407 (1972); Wheeler v. Wheeler, 229 Ga. 84, 189 S.E.2d 427 (1972); Scardina v. Scardina, 229 Ga. 341, 191 S.E.2d 52 (1972); Lowndes County v. Dasher, 229 Ga. 289, 191 S.E.2d 82 (1972); Motors Ins. Corp. v. Turpin, 126 Ga. App. 650, 191 S.E.2d 543 (1972); Minor v. Ray, 127 Ga. App. 1, 193 S.E.2d 41 (1972); Brooks v. Williams, 127 Ga. App. 311, 193 S.E.2d 231 (1972); Black v. Donehoo, 229 Ga. 712, 194 S.E.2d 90 (1972); Shepherd v. Foskey, 229 Ga. 709, 194 S.E.2d 110 (1972); Huckaby v. State, 128 Ga. App. 79, 195 S.E.2d 688 (1973); West v. Forehand, 128 Ga. App. 124, 195 S.E.2d 777 (1973); Jones v. Spindel, 128 Ga. App. 88, 196 S.E.2d 22 (1973); Goldberg v. Painter, 128 Ga. App. 214, 196 S.E.2d 157 (1973); Aiken v. Bynum, 128 Ga. App. 212, 196 S.E.2d 180 (1973); Peppers v. McCannon, 230 Ga. 387, 197 S.E.2d 361 (1973); First Fid. Ins. Corp. v. Busbia, 128 Ga. App. 485, 197 S.E.2d 396 (1973); Veal v. General Accident Fire & Life Assurance Corp., 128 Ga. App. 610, 197 S.E.2d 410 (1973); Stone v. Peoples Bank, 128 Ga. App. 796, 197 S.E.2d 925 (1973); Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182 (1973); Coweta Bonding Co. v. Carter, 230 Ga. 585, 198 S.E.2d 281 (1973); Patman v. General Fin. Corp., 128 Ga. App. 836, 198 S.E.2d 371 (1973); Mason v. Service Loan & Fin. Co., 128 Ga. App. 828, 198 S.E.2d 391 (1973); Hite v. Waldrop, 230 Ga. 684, 198 S.E.2d 665 (1973); Williams v. Nuckolls, 230 Ga. 697, 198 S.E.2d 870 (1973); Kyzer v. Director, Dep't of Pub. Safety, 129 Ga. App. 186, 198 S.E.2d 888 (1973); Loukes v. McCoy, 129 Ga. App. 167, 199 S.E.2d 125 (1973); Miller v. Miller, 230 Ga. 777, 199 S.E.2d 241 (1973); Sikes v. Sikes, 231 Ga. 105, 200 S.E.2d 259 (1973); Jordan v. Caldwell, 231 Ga. 226, 200 S.E.2d 868 (1973); Stamm & Co. v. Boaz Spinning Co., 129 Ga. App. 779, 201 S.E.2d 480 (1973); Pinkerton & Laws Co. v. Robert & Co. Assocs., 129 Ga. App. 881, 201 S.E.2d 654 (1973); Vericon Corp. v. Hardin, 130 Ga. App. 239, 202 S.E.2d 691 (1973); Southern Disct. Co. v. Cooper, 130 Ga. App. 223, 203 S.E.2d 237 (1973); Cullers v. Home Credit Co., 130 Ga. App. 441, 203 S.E.2d 544 (1973); Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Purcell v. Cowart, 231 Ga. 675, 203 S.E.2d 482 (1974); Ansley v. Atlanta Suburbia Estates, Ltd., 231 Ga. 640, 203 S.E.2d 861 (1974); Johnson v. Cook, 130 Ga. App. 575, 203 S.E.2d 882 (1974); Krasner v. Verner Auto Supply, Inc., 130 Ga. App. 892, 204 S.E.2d 770 (1974); Snyder v. Allen, 131 Ga. App. 617, 206 S.E.2d 591 (1974); Wilson v. Grimes, 232 Ga. 388, 207 S.E.2d 5 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44, 207 S.E.2d 573 (1974); Master Mtg. Corp. v. Craven, 132 Ga. App. 404, 208 S.E.2d 158 (1974); Prattes v. Southeast Ceramics, Inc., 132 Ga. App. 584, 208 S.E.2d 600 (1974); Thrift v. Vi-Vin Prods., Inc., 232 Ga. 828, 209 S.E.2d 174 (1974); Gray v. Hall, 233 Ga. 244, 210 S.E.2d 766 (1974); Mullinax v. Mullinax, 233 Ga. 271, 211 S.E.2d 1 (1974); Hinsley v. Liberty Loan Corp., 133 Ga. App. 344, 211 S.E.2d 3 (1974); Gilmer v. Porterfield, 233 Ga. 671, 212 S.E.2d 842 (1975); Keener v. MacDougall, 233 Ga. 881, 213 S.E.2d 835 (1975); Adams v. Adams, 234 Ga. 139, 214 S.E.2d 561 (1975); Parzini v. Center Chem. Co., 134 Ga. App. 414, 214 S.E.2d 700 (1975); Jere Power Car Land, Inc. v. Moss, 134 Ga. App. 523, 215 S.E.2d 288 (1975); Murphy v. State, 134 Ga. App. 571, 215 S.E.2d 330 (1975); Thrift v. Vi-Vin Prods., Inc., 134 Ga. App. 717, 215 S.E.2d 709 (1975); Robinson-Shamburger, Inc. v. Tenney, 135 Ga. App. 131, 217 S.E.2d 184 (1975); Anderson v. G.A.C. Fin. Corp., 135 Ga. App. 116, 217 S.E.2d 605 (1975); Davenport v. Idlett, 234 Ga. 864, 218 S.E.2d 577 (1975); Hill v. Hill, 234 Ga. 836, 218 S.E.2d 619 (1975); Watson v. Watson, 235 Ga. 136, 218 S.E.2d 863 (1975); Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975); Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975); Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50, 220 S.E.2d 14 (1975); Moss v. Bishop, 235 Ga. 616, 221 S.E.2d 38 (1975); Earwood v. Liberty Loan Corp., 136 Ga. App. 799, 222 S.E.2d 204 (1975); Jones v. Royal Globe Ins. Co., 137 Ga. App. 302, 223 S.E.2d 494 (1976); Price v. Guardian Mtg. Corp., 137 Ga. App. 519, 224 S.E.2d 451 (1976); Wallace v. Aetna Fin. Co., 137 Ga. App. 580, 224 S.E.2d 517 (1976); Hopkins v. Donaldson, 137 Ga. App. 786, 224 S.E.2d 788 (1976); Yarbray v. Young, 236 Ga. 784, 225 S.E.2d 315 (1976); Graybar Elec. Co. v. Opp, 138 Ga. App. 456, 226 S.E.2d 271 (1976); Burrell v. Wood, 237 Ga. 162, 227 S.E.2d 60 (1976); Brannon v. Whisenant, 138 Ga. App. 627, 227 S.E.2d 91 (1976); Kidd v. Kidd, 237 Ga. 232, 227 S.E.2d 259 (1976); Thomas v. Firestone Tire & Rubber Co., 139 Ga. App. 40, 227 S.E.2d 870 (1976); Bullock v. Grogan, 139 Ga. App. 97, 227 S.E.2d 894 (1976); Dubs v. State, 139 Ga. App. 236, 228 S.E.2d 213 (1976); Smith v. Security Mtg. Investors, 139 Ga. App. 635, 229 S.E.2d 115 (1976); Vickery v. Vickery, 237 Ga. 702, 229 S.E.2d 453 (1976); Atlanta Cas. Co. v. Williams, 139 Ga. App. 732, 229 S.E.2d 534 (1976); Whitaker v. Whitaker, 237 Ga. 739, 229 S.E.2d 603 (1976); Echols v. Dyches, 140 Ga. App. 191, 230 S.E.2d 315 (1976); Bank of S. v. Hammock, 140 Ga. App. 552, 231 S.E.2d 407 (1976); Bolton Rd. Medical Ctr. v. Strother & Co., 140 Ga. App. 724, 231 S.E.2d 533 (1976); Bullock v. Grogan, 141 Ga. App. 40, 232 S.E.2d 605 (1977); Cofer v. Williams, 141 Ga. App. 72, 232 S.E.2d 610 (1977); Aetna Fin. Co. v. Pair, 141 Ga. App. 243, 233 S.E.2d 218 (1977); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280, 233 S.E.2d 256 (1977); Mitchell v. Chastain Fin. Co., 141 Ga. App. 512, 233 S.E.2d 829 (1977); Cook v. Kruger, 141 Ga. App. 815, 234 S.E.2d 402 (1977)
Superior Drywall Supply, Inc. v. Jackson, 142 Ga. App. 322, 235 S.E.2d 726 (1977); Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729 (1977); Restler v. Haas & Dodd Realty Co., 142 Ga. App. 318, 235 S.E.2d 759 (1977); State Farm Mut. Auto. Ins. Co. v. Penrow, 142 Ga. App. 463, 236 S.E.2d 275 (1977); Kennedy v. Brown, 239 Ga. 286, 236 S.E.2d 632 (1977); Redding v. Commonwealth of Am., Inc., 143 Ga. App. 215, 237 S.E.2d 689 (1977); International Paper Co. v. Kight, 239 Ga. 551, 238 S.E.2d 88 (1977); Hatfield v. Leland, 143 Ga. App. 528, 239 S.E.2d 169 (1977); Buckley v. Thornwell, 143 Ga. App. 764, 240 S.E.2d 258 (1977); Security Ins. Group v. Slusher, 144 Ga. App. 2, 240 S.E.2d 272 (1977); Litton Indus. Credit Corp. v. McDonald, 240 Ga. 459, 241 S.E.2d 216 (1978); Shoemaker v. Department of Transp., 240 Ga. 573, 241 S.E.2d 820 (1978); Wilson v. Passmore, 240 Ga. 716, 242 S.E.2d 124 (1978); Alexander v. Askin Squire Corp., 144 Ga. App. 662, 242 S.E.2d 324 (1978); Simonds v. Simonds, 145 Ga. App. 227, 243 S.E.2d 545 (1978); National Enters., Inc. v. Davis, 145 Ga. App. 198, 243 S.E.2d 563 (1978); Fisher v. Great Am. Mgt. & Inv., 145 Ga. App. 394, 243 S.E.2d 588 (1978); Rinconcito Latino, Inc. v. Eriksson, 145 Ga. App. 340, 243 S.E.2d 721 (1978); Sweeney v. Sweeney, 241 Ga. 372, 245 S.E.2d 648 (1978); Anderson v. Fulton Nat'l Bank, 146 Ga. App. 155, 245 S.E.2d 860 (1978); Boston Sea Party of Atlanta, Inc. v. Bryant Lithographing Co., 146 Ga. App. 294, 246 S.E.2d 350 (1978); McLean v. McLean, 242 Ga. 71, 247 S.E.2d 867 (1978); Gresham v. Rogers, 147 Ga. App. 189, 248 S.E.2d 225 (1978); Burnett v. American Mut. Liab. Ins. Co., 147 Ga. App. 269, 248 S.E.2d 510 (1978); Riddle v. Miller, 242 Ga. 231, 248 S.E.2d 616 (1978); Mitchell v. Koopu, 242 Ga. 506, 249 S.E.2d 210 (1978); Porter v. Johnson, 242 Ga. 188, 249 S.E.2d 608 (1978); Norman v. Allen, 148 Ga. App. 66, 251 S.E.2d 20 (1978); Parkerson v. Indies Co., 148 Ga. App. 106, 251 S.E.2d 98 (1978); Webb v. National Disct. Co., 148 Ga. App. 313, 251 S.E.2d 163 (1978); Donald v. Luckie Strike Loans, Inc., 148 Ga. App. 318, 251 S.E.2d 168 (1978); Cofer v. Gibson, 148 Ga. App. 572, 252 S.E.2d 6 (1978); King v. King, 242 Ga. 770, 251 S.E.2d 516 (1979); Master v. Savannah Sur. Assocs., 148 Ga. App. 678, 252 S.E.2d 186 (1979); Gregson & Assocs. v. Webb, Young, Daniel & Murphy, P.C., 243 Ga. 53, 252 S.E.2d 482 (1979); Kiplinger v. Nature Island, Inc., 149 Ga. App. 103, 253 S.E.2d 569 (1979); Chambers v. Scarboro, 149 Ga. App. 172, 253 S.E.2d 798 (1979); Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135, 253 S.E.2d 813 (1979); Spyropoulos v. Linard Estate, 243 Ga. 518, 255 S.E.2d 40 (1979); Citizens & S. Nat'l Bank v. Brown, 149 Ga. App. 795, 256 S.E.2d 72 (1979); Knox v. Knox, 243 Ga. 797, 256 S.E.2d 777 (1979); Kersey v. American Fed. Sav. & Loan Ass'n, 150 Ga. App. 445, 258 S.E.2d 65 (1979); Fuller v. Williams, 150 Ga. App. 730, 258 S.E.2d 538 (1979); Blatt v. Bernath, 151 Ga. App. 69, 258 S.E.2d 735 (1979); K. & L. Constr. Co. v. Central Bank & Trust Co., 151 Ga. App. 123, 258 S.E.2d 771 (1979); Hancock v. Oates, 244 Ga. 175, 259 S.E.2d 437 (1979); Browning v. Europa Hair, Inc., 244 Ga. 222, 259 S.E.2d 473 (1979); Bonneau v. Ohme, 244 Ga. 184, 259 S.E.2d 631 (1979); Burns & Ledbetter, Inc. v. Primark Marking Co., 244 Ga. 341, 260 S.E.2d 58 (1979); Cargile v. Cofer, 151 Ga. App. 569, 260 S.E.2d 562 (1979); First Nat'l Bank v. Uniform Rental Serv., Inc., 151 Ga. App. 827, 261 S.E.2d 751 (1979); Fidelity Nat'l Bank v. KM Gen. Agency, Inc., 244 Ga. 753, 262 S.E.2d 67 (1979); Redi-Cut Co. v. Bonanza Int'l, Inc., 244 Ga. 794, 262 S.E.2d 76 (1979); Webster v. Star Distrib. Co., 244 Ga. 844, 262 S.E.2d 80 (1979); Watts v. Oakes, 152 Ga. App. 99, 262 S.E.2d 254 (1979); Munday v. Munday, 152 Ga. App. 232, 262 S.E.2d 543 (1979); Morgan v. Berry, 152 Ga. App. 623, 263 S.E.2d 508 (1979); Arndt v. Dudley, 245 Ga. 127, 263 S.E.2d 159 (1980); Shelley v. Liberty Loan Corp., 153 Ga. App. 47, 264 S.E.2d 537 (1980); Green v. Citizens & S. Bank, 153 Ga. App. 342, 265 S.E.2d 286 (1980); Spiegel, Inc. v. Odum, 153 Ga. App. 380, 265 S.E.2d 297 (1980); Redmond v. Blau, 153 Ga. App. 395, 265 S.E.2d 329 (1980); Brown v. Brown, 245 Ga. 511, 265 S.E.2d 809 (1980); McCarthy v. Holloway, 245 Ga. 710, 267 S.E.2d 4 (1980); Colvin v. United States, 153 Ga. App. 874, 267 S.E.2d 297 (1980); Spyropoulos v. Linard Estate, 154 Ga. App. 200, 267 S.E.2d 796 (1980); Turner v. T & T Oldsmobile, Inc., 154 Ga. App. 228, 267 S.E.2d 833 (1980); Diggs v. Swift Loan & Fin. Co., 154 Ga. App. 389, 268 S.E.2d 433 (1980); Baxter v. Weiner, 246 Ga. 28, 268 S.E.2d 619 (1980); Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015); Lovell v. Service Concept, Inc., 154 Ga. App. 760, 269 S.E.2d 894 (1980); Randall & Blakely, Inc. v. Krantz, 155 Ga. App. 238, 270 S.E.2d 265 (1980); Champion v. Rakes, 155 Ga. App. 134, 270 S.E.2d 272 (1980); Interstate Life & Accident Ins. Co. v. Young, 157 Ga. App. 342, 277 S.E.2d 271 (1981); Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981); Cotton v. Ruck, 157 Ga. App. 824, 278 S.E.2d 693 (1981); Associated Grocers Coop. v. Trust Co., 158 Ga. App. 115, 279 S.E.2d 248 (1981); P.B.R. Enters., Inc. v. Perren, 158 Ga. App. 24, 279 S.E.2d 292 (1981); Kaplan v. City of Atlanta, 158 Ga. App. 58, 279 S.E.2d 307 (1981); Turnipseed v. State, 158 Ga. App. 266, 279 S.E.2d 725 (1981); Shoffeitt v. Busbee, 158 Ga. App. 47, 279 S.E.2d 764 (1981); Willett Lincoln-Mercury, Inc. v. Larson, 158 Ga. App. 540, 281 S.E.2d 297 (1981); Wallace v. Lessard, 158 Ga. App. 772, 282 S.E.2d 153 (1981); Dutton v. Dykes, 159 Ga. App. 48, 283 S.E.2d 28 (1981); Hayes v. Hayes, 248 Ga. 526, 283 S.E.2d 875 (1981); Bell v. Sellers, 248 Ga. 424, 283 S.E.2d 877 (1981); Doke v. Doke, 248 Ga. 514, 284 S.E.2d 419 (1981); Deans v. Kingston Dev. Corp., 159 Ga. App. 721, 285 S.E.2d 37 (1981); Anton v. Garvey, 160 Ga. App. 157, 286 S.E.2d 493 (1981); Graves v. American Alloy Steel, Inc., 160 Ga. App. 378, 287 S.E.2d 94 (1981); Byrd v. Byrd, 249 Ga. 23, 287 S.E.2d 194 (1982); Grant v. Barge, 160 Ga. App. 488, 287 S.E.2d 393 (1981); Business Equip. Div. v. Ransby, 160 Ga. App. 851, 288 S.E.2d 246 (1982); Great Atl. Ins. Co. v. Morgan, 161 Ga. App. 680, 288 S.E.2d 287 (1982); Godfrey v. Kirk, 161 Ga. App. 474, 288 S.E.2d 301 (1982); National Bank v. Hill, 161 Ga. App. 499, 288 S.E.2d 365 (1982); Shelton v. Rodgers, 160 Ga. App. 910, 288 S.E.2d 619 (1982); Paine, Webber, Jackson & Curtis, Inc. v. McNeal, 161 Ga. App. 835, 288 S.E.2d 761 (1982); Grant v. Bell, 161 Ga. App. 878, 288 S.E.2d 907 (1982); Georgia Power Co. v. Busbin, 249 Ga. 180, 289 S.E.2d 514 (1982); Freeman v. Sreeram, 161 Ga. App. 594, 289 S.E.2d 524 (1982); Thurmond v. Georgia R.R. Bank & Trust Co., 162 Ga. App. 245, 290 S.E.2d 126 (1982); Shaw v. Lawrence P. Vickers & Assocs., 162 Ga. App. 97, 290 S.E.2d 186 (1982); Cochran v. Levitz Furn. Co., 249 Ga. 504, 291 S.E.2d 535 (1982); Littlejohn v. Tower Assocs., 163 Ga. App. 37, 293 S.E.2d 33 (1982); Superior Rigging & Erecting Co. v. Krofft Dev. Corp., 162 Ga. App. 810, 293 S.E.2d 72 (1982); Hart v. Eldridge, 163 Ga. App. 295, 293 S.E.2d 550 (1982); Powell v. Darby Bank & Trust Co., 163 Ga. App. 524, 295 S.E.2d 222 (1982); Scott v. Morris Brown College, 164 Ga. App. 264, 297 S.E.2d 45 (1982); GECC v. Capital Ford Truck Sales, Inc., 164 Ga. App. 468, 298 S.E.2d 159 (1982); Goldberg v. Black, 165 Ga. App. 33, 299 S.E.2d 78 (1983); Murer v. Howard, 165 Ga. App. 230, 299 S.E.2d 151 (1983); Cabaniss v. Cabaniss, 251 Ga. 177, 304 S.E.2d 65 (1983); Partridge v. Partridge, 167 Ga. App. 716, 307 S.E.2d 524 (1983); Iannicelli v. Iannicelli, 169 Ga. App. 155, 311 S.E.2d 850 (1983); Hughes v. Hughes, 169 Ga. App. 850, 314 S.E.2d 920 (1984); Southern Diversified Properties, Inc. v. Brown, 253 Ga. 23, 315 S.E.2d 901 (1984); Lamb v. Brown, 170 Ga. App. 40, 316 S.E.2d 29 (1984)
Georgia Farm Bldgs., Inc. v. Willard, 170 Ga. App. 327, 317 S.E.2d 229 (1984); Profit v. Leasing Sys., 170 Ga. App. 364, 317 S.E.2d 341 (1984); Starling, Inc. v. Housing Auth., 170 Ga. App. 858, 318 S.E.2d 728 (1984); Williams v. Calloway, 171 Ga. App. 286, 319 S.E.2d 500 (1984); In re Anderson, 171 Ga. App. 918, 321 S.E.2d 417 (1984); J.E.E.H. Enters., Inc. v. Montgomery Ward & Co., 172 Ga. App. 58, 321 S.E.2d 800 (1984); Allgood Rd. United Methodist Church, Inc. v. Smith, 173 Ga. App. 28, 325 S.E.2d 392 (1984); G & H Constr. Co. v. Daniels Flooring Co., 173 Ga. App. 181, 325 S.E.2d 773 (1984); Ahrens v. Katz, 595 F. Supp. 1108 (N.D. Ga. 1984); Georgia Farm Bldgs., Inc. v. Willard, 597 F. Supp. 629 (N.D. Ga. 1984); Collins v. Collins, 172 Ga. App. 748, 324 S.E.2d 475 (1985); Miller v. Grier, 175 Ga. App. 91, 332 S.E.2d 323 (1985); Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70, 332 S.E.2d 368 (1985); John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 333 S.E.2d 856 (1985); Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 334 S.E.2d 33 (1985); Davis v. Fambro, 254 Ga. 737, 334 S.E.2d 306 (1985); Leader Nat'l Ins. Co. v. Smith, 177 Ga. App. 267, 339 S.E.2d 321 (1985); Bartlett v. Hembree, 177 Ga. App. 253, 339 S.E.2d 388 (1985); Loftin v. Rush, 767 F.2d 800 (11th Cir. 1985); Folks, Inc. v. Agan, 177 Ga. App. 480, 340 S.E.2d 26 (1986); Marsh v. Way, 256 Ga. 46, 343 S.E.2d 686 (1986); SCM Corp. v. Mazor, 256 Ga. 185, 347 S.E.2d 228 (1986); Brunswick Gas & Fuel Co. v. Parrish, 179 Ga. App. 495, 347 S.E.2d 240 (1986); Hodges Plumbing & Elec. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 347 S.E.2d 257 (1986); Georgia Ins. Co. v. Brown, 179 Ga. App. 687, 347 S.E.2d 290 (1986); Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 348 S.E.2d 628 (1986); Bagwell v. Parker, 182 Ga. App. 313, 355 S.E.2d 463 (1987); Chrysler Corp. v. Marinari, 182 Ga. App. 399, 355 S.E.2d 719 (1987); Westinghouse Elec. Corp. v. Williams, 183 Ga. App. 845, 360 S.E.2d 411 (1987); Grimes v. St. Paul Fire & Marine Ins. Co., 184 Ga. App. 214, 361 S.E.2d 389 (1987); Yaeger v. Stith Equip. Co., 185 Ga. App. 315, 364 S.E.2d 48 (1987); Nova Group, Inc. v. M.B. Davis Elec. Co., 258 Ga. 7, 364 S.E.2d 833 (1988); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492, 364 S.E.2d 623 (1988); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); Crolley v. Johnson, 185 Ga. App. 671, 365 S.E.2d 277 (1988); Graves v. Graves, 186 Ga. App. 140, 366 S.E.2d 809 (1988); Franklyn Gesner Fine Paintings, Inc. v. Ketcham, 186 Ga. App. 853, 368 S.E.2d 774 (1988); Hill v. Loren, 187 Ga. App. 71, 369 S.E.2d 260 (1988); Newell v. Brown, 187 Ga. App. 9, 369 S.E.2d 499 (1988); Rogers v. Rockdale County, 187 Ga. App. 658, 371 S.E.2d 189 (1988); State Farm Mut. Auto. Ins. Co. v. Yancey, 188 Ga. App. 8, 371 S.E.2d 883 (1988); Rockdale County v. Water Rights Comm., Inc., 189 Ga. App. 873, 377 S.E.2d 730 (1989); Jones v. Robertson, 191 Ga. App. 537, 382 S.E.2d 382 (1989); Palm Restaurant of Ga., Inc. v. Prakas, 192 Ga. App. 74, 383 S.E.2d 584 (1989); State ex rel. Harrell v. Harrell, 260 Ga. 202, 391 S.E.2d 641 (1990); Griffin v. State, 194 Ga. App. 624, 391 S.E.2d 675 (1990); Allen v. Nash, 195 Ga. App. 597, 394 S.E.2d 395 (1990); Alstrom v. Allstate Enters., Inc., 195 Ga. App. 458, 394 S.E.2d 801 (1990); Callahan v. Panfel, 195 Ga. App. 891, 395 S.E.2d 80 (1990); Holbrook v. General Elec. Capital Corp., 196 Ga. App. 382, 396 S.E.2d 253 (1990); Marshall v. Gatison, 197 Ga. App. 370, 398 S.E.2d 429 (1990); Wilson v. Malcolm T. Gilliland, Inc., 198 Ga. App. 616, 402 S.E.2d 291 (1991); Farmer v. State, 199 Ga. App. 576, 405 S.E.2d 569 (1991); Citation Bonding Co. v. State, 199 Ga. App. 868, 406 S.E.2d 289 (1991); Brevard Fed. Sav. & Loan Ass'n v. Ford Mt., Inc., 261 Ga. 619, 409 S.E.2d 36 (1991); Smith v. Manns, 200 Ga. App. 701, 409 S.E.2d 270 (1991); Hall & Sosebee Trucking Co. v. Smith, 201 Ga. App. 282, 410 S.E.2d 784 (1991); Sartin v. State, 201 Ga. App. 612, 411 S.E.2d 582 (1991); State v. Brown, 201 Ga. App. 771, 412 S.E.2d 583 (1991); First Dixie Properties, Inc. v. Chrysler Corp., 202 Ga. App. 145, 413 S.E.2d 464 (1991); Hipple v. Brick, 202 Ga. App. 571, 415 S.E.2d 182 (1992); Collier v. Evans, 205 Ga. App. 764, 423 S.E.2d 704 (1992); Kidd v. Unger, 207 Ga. App. 109, 427 S.E.2d 82 (1993); Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir. 1993); Griggs v. All-Steel Bldgs., Inc., 209 Ga. App. 253, 433 S.E.2d 89 (1993); Beringause v. Fogleman, 209 Ga. App. 470, 433 S.E.2d 398 (1993); Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993); Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353 (1994); Southworth v. Southworth, 265 Ga. 671, 461 S.E.2d 215 (1995); Sikes v. Norton, 185 Bankr. 945 (Bankr. N.D. Ga. 1995); French Quarter, Inc. v. Peterson, Young, Self & Asselin, 220 Ga. App. 852, 471 S.E.2d 9 (1996); Thibadeau v. Hendon, 221 Ga. App. 258, 471 S.E.2d 52 (1996); Gold Kist, Inc. v. Wilson, 227 Ga. App. 848, 490 S.E.2d 466 (1997); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Pine Tree Publ'g, Inc. v. Community Holdings, Inc., 242 Ga. App. 689, 531 S.E.2d 137 (2000); First Born Church of the Living God, Inc. v. Bank of Am., N.A., 248 Ga. App. 500, 546 S.E.2d 1 (2001); Biggs v. Heriot, 249 Ga. App. 461, 549 S.E.2d 131 (2001); Carter v. Ravenwood Dev. Co., 249 Ga. App. 603, 549 S.E.2d 402 (2001); Amaechi v. Lib Props., Ltd., 254 Ga. App. 74, 561 S.E.2d 137 (2002); Potts v. UAP-GA AG CHEM, Inc., 256 Ga. App. 153, 567 S.E.2d 316 (2002); Owens v. Dep't of Human Res., 255 Ga. App. 678, 566 S.E.2d 403 (2002); Threatt v. Forsyth County, 262 Ga. App. 186, 585 S.E.2d 159 (2003); Buckhorn Ventures, LLC v. Forsyth County, 262 Ga. App. 299, 585 S.E.2d 229 (2003); Empire Fire & Marine Ins. Co. v. Driskell, 262 Ga. App. 447, 585 S.E.2d 657 (2003); Giles v. Vastakis, 262 Ga. App. 483, 585 S.E.2d 905 (2003); Sec. Life Ins. Co. v. St. Paul Marine & Fire Ins. Co., 263 Ga. App. 525, 588 S.E.2d 319 (2003); Torres v. Tandy Corp., 264 Ga. App. 686, 592 S.E.2d 111 (2003); Head v. Wachovia Bank, N.A., 264 Ga. App. 608, 591 S.E.2d 424 (2003); Pierce v. State, 278 Ga. App. 162, 628 S.E.2d 235 (2006); Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006); Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007); In re Estate of Brice, 288 Ga. App. 449, 654 S.E.2d 420 (2007); Ervin v. Turner, 291 Ga. App. 719, 662 S.E.2d 721 (2008); In re Estate of Zeigler, 295 Ga. App. 156, 671 S.E.2d 218 (2008); Davis v. State, 285 Ga. 343, 676 S.E.2d 215 (2009); Perkins v. State, 300 Ga. App. 464, 685 S.E.2d 300 (2009); Belans v. Bank of Am., N.A., 309 Ga. App. 208, 709 S.E.2d 853 (2011); Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012); Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013); Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014); N. Druid Dev., LLC v. Post, Buckley, Schuh & Jernigan, Inc., 330 Ga. App. 432, 767 S.E.2d 29 (2014); Rymer v. Polo Golf & Country Club Homeowners Ass'n, Inc., 335 Ga. App. 167, 780 S.E.2d 95 (2015); Cohen v. Rogers, 338 Ga. App. 156, 789 S.E.2d 352 (2016); Rollins v. Rollins, 300 Ga. 485, 796 S.E.2d 721 (2017); Brock v. RES-GA SCL, LLC, 340 Ga. App. 194, 796 S.E.2d 914 (2017); Healthy-IT, LLC v. Agrawal, 343 Ga. App. 660, 808 S.E.2d 876 (2017); Faison v. Faison, 344 Ga. App. 600, 811 S.E.2d 431 (2018); SunTrust Bank v. Cowan, 344 Ga. App. 604, 812 S.E.2d 13 (2018); Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018), cert. denied, No. S18C1054, 2018 Ga. LEXIS 769 (Ga. 2018); Barnes v. Cannon, 347 Ga. App. 517, 820 S.E.2d 155 (2018); Cartwright v. Caldwell, 305 Ga. 371, 825 S.E.2d 168 (2019); Jha v. Menkee, 352 Ga. App. 81, 833 S.E.2d 759 (2019); Caldwell v. Church, 353 Ga. App. 141, 836 S.E.2d 594 (2019).
Power of Court over Judgments, Generally
Trial court has the inherent power to amend or set aside a judgment for any "meritorious reason," provided the motion to set aside is filed during the term in which the judgment was rendered. Goode v. O'Neal, Banks & Assocs., 165 Ga. App. 162, 300 S.E.2d 191 (1983).
Power to amend granted to the trial judge is plenary. Camera Shop, Inc. v. GAF Corp., 130 Ga. App. 88, 202 S.E.2d 241 (1973).
Power of court over judgment during term in which entered.
- Court of record has plenary control of the court's orders and judgments during the term rendered, and may amend, correct, modify, supplement, or vacate them; exercise of this power during the term will not be disturbed unless there is an abuse thereof. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373, 56 S.E.2d 165 (1949) (decided under former Code 1933, Ch. 7, T. 110).
Trial judge has power during the term of court at which a judgment is rendered to revise, revoke, or vacate that judgment, even on the judge's own motion, for the purpose of promoting justice and in the exercise of sound discretion. Bandy v. Smith, 211 Ga. 192, 84 S.E.2d 449 (1954) (decided under former Code 1933, Ch. 7, T. 110).
Superior court has power, during the same term at which an order or judgment is rendered, to revoke or vacate the judgment for meritorious cause, and such power is not lost during the term merely because the time for excepting to the judgment directly has expired. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617, 94 S.E.2d 699 (1956) (decided under former Code 1933, Ch. 7, T. 110).
Superior court retains plenary control over judgments entered, during the term in which the judgments are entered, and in the exercise of sound discretion may revoke or vacate the judgments , and such discretion will not be interfered with by the appellate courts unless manifestly abused; such discretion may be applied in reinstating cases dismissed for lack of prosecution, reinstating cases dismissed on general demurrer, reinstating cases in default in which final judgment had been rendered, and, for good cause shown, reinstating a case after a verdict was rendered but before it is spread on the minutes. Carolina Tree Serv., Inc. v. Cartledge, 96 Ga. App. 240, 99 S.E.2d 705 (1957) (decided under former Code 1933, § 110-702).
Superior court retains plenary control over the court's judgments during the term in which the judgments are entered and, in the exercise of sound discretion, may revoke the judgments; this inherent power applies to all judgments, save those that are founded on verdicts. Allen v. Allen, 218 Ga. 364, 127 S.E.2d 902 (1962) (decided under former Code 1933, Ch. 7, T. 110).
Court of record has continuing jurisdiction to enter judgment on a jury verdict at any time. Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983), overruling Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978).
Whatever limitations may exist in subsection (d) of O.C.G.A. § 9-11-60 for post-term motions to set aside, a trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment in the exercise of the judge's discretion. Piggly Wiggly S., Inc. v. McCook, 216 Ga. App. 335, 454 S.E.2d 203 (1995).
Although a judgment cannot be set aside under O.C.G.A. § 9-11-60(d) unless the grounds relied upon are unmixed with negligence or fault of the movant, a trial court in the exercise of the court's discretion still has the inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment. Kirkley v. Jones, 250 Ga. App. 113, 550 S.E.2d 686 (2001).
Opening default.
- Trial court has no discretion to allow a default to be opened for excusable neglect after final judgment. Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 349 S.E.2d 223 (1986).
Trial court abused the court's discretion in not granting the vehicle owner's motion for a directed verdict and setting aside the default judgment entered against the vehicle owner as the evidence showed that the wrecker service that found the vehicle owner's vehicle abandoned did not send notice of the foreclosure action against the vehicle owner to the vehicle owner's correct address; rather, the wrecker company sent notice of that action to an incorrect address located in a state other than that in which the vehicle owner was located, through no fault of the vehicle owner. Mitsubishi Motors Credit of Am., Inc. v. Robinson & Stephens, Inc., 263 Ga. App. 168, 587 S.E.2d 146 (2003).
In a personal injury lawsuit, the pendency of the defendant's appeal from the denial of the defendant's motion to set aside the default judgment acted as a supersedeas depriving the trial court of the jurisdiction to consider its subsequent extraordinary motion for new trial. Fred Jones Enters., LLC v. Williams, 331 Ga. App. 481, 771 S.E.2d 163 (2015).
Trial court erred by denying the plaintiff's motion for contempt sanctions against the defaulted defendant because the trial court improperly reconsidered issues that were settled by the default judgment when the court ruled that the plaintiff was not entitled to a contempt judgment since the plaintiff did not have enough years of service to vest in the retirement plan and was, thus, not entitled to the retirement benefits the plaintiff sued for. Valley v. S. Atl. Conf. of Seventh-day Adventist, 347 Ga. App. 131, 817 S.E.2d 704 (2018).
Time for filing.
- Motion to set aside made pursuant to O.C.G.A. § 9-11-60 does not have to be filed within the same term of court in which the challenged judgment was rendered. Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982).
Judgments and decrees in breast of court during term of entry.
- Decree, during the term at which the decree was rendered, is said to be in the breast of the judge; after the term is over, the decree is upon the roll. This rule as to the finality of judgments has not been changed. Holloman v. Holloman, 228 Ga. 246, 184 S.E.2d 653 (1971); Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975).
Because a motion to re-open a case based on the failure to adjudicate a material issue was filed and acted upon after expiration of the term of court at which the final judgment was rendered, the trial court no longer had inherent authority over a case within the breast of the court. Gabel v. Revels, 203 Ga. App. 131, 416 S.E.2d 103 (1992).
Contractor's motion for reconsideration was an improper attempt to attack the trial court's judgment outside the term of court without setting forth a basis under O.C.G.A. § 9-11-60(d); because the trial court's term expired before the filing of the motion for reconsideration, the judgment was no longer within the breast of the trial court and could not be set aside or altered. J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 644 S.E.2d 440 (2007).
Judgment may be set aside in exercise of discretion.
- Judgment is in the breast of the court during the term in which the judgment is rendered, and the judge may set the judgment aside in the exercise of the judge's discretion. Crowe v. Crowe, 245 Ga. 719, 267 S.E.2d 14 (1980).
Excusable neglect.
- Because a dental patient's expert affidavit pursuant to O.C.G.A. § 9-11-9.1 was not based on certified or sworn records, nor was the affidavit based on the personal knowledge of the expert, the trial court erred in denying the dentist's motion for summary judgment in the patient's dental malpractice action; although the records custodian failed to properly provide certified copies of the records upon the patient's discovery request, the patient waived the right to present such evidence pursuant to Ga. Unif. Super. Ct. R. 6.2 after the patient did not file a timely response to the dentist's summary judgment with an O.C.G.A. § 9-11-56(f) affidavit, and the patient did not show excusable neglect for purposes of O.C.G.A. § 9-11-60(b). Rudd v. Paden, 279 Ga. App. 141, 630 S.E.2d 648 (2006).
Judgment not based on jury verdict.
- If a judgment is not based on the verdict of a jury but is the act of the judge, it is in the breast of the court during the term in which the judgment is rendered, and in the exercise of sound discretion the judge may set the judgment aside. Martin v. GMC, Fisher Body Div., 226 Ga. 860, 178 S.E.2d 183 (1970).
Judgment based on jury verdict.
- If a prior judgment was based on a jury verdict trial a court does not, under the court's inherent power, have authority to vacate the judgment or set the judgment aside, even during the same term of court in which the judgment was rendered. Edwards v. Yelverton, 147 Ga. App. 525, 249 S.E.2d 334 (1978).
Judgment based on settlement.
- If the trial court orders entry of a settlement amount and dismisses a case with prejudice and the plaintiff files a motion for new trial and a motion to set aside, contending that the plaintiff did not agree to the settlement and that the plaintiff's attorney was without authority to compromise, the trial court does not err in hearing this attack on the judgment; the matter is still in the breast of the trial court and the proceedings toll the time for appeal. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).
Even though relief is denied under O.C.G.A. § 9-11-60. - Trial judge may exercise inherent power to set aside a judgment, even though the judge denied the moving parties' prayers for relief under O.C.G.A. § 9-11-60, as long as the term of court has not ended. Crowe v. Crowe, 245 Ga. 719, 267 S.E.2d 14 (1980).
Although a party's claim as to lack of notice of trial may be without merit, this does not mean that the trial court is without authority to set aside the judgment or grant a new trial, if the circumstances warrant such relief. Maolud v. Keller, 153 Ga. App. 268, 265 S.E.2d 86 (1980).
When a defect is not on the face of record.
- If a meritorious motion is made to set aside a judgment during the term in which the judgment is rendered, the proceeding may be entertained, even though the motion is not based on a defect appearing on the face of the record. Martin v. GMC, Fisher Body Div., 226 Ga. 860, 178 S.E.2d 183 (1970).
Hearing required because error not clear on face of judgment.
- Because the facts presented did not create a circumstance showing the parties knew what order the trial court intended, and it was not obvious what the correct judgment should have been, the order entered could not have been corrected without an opportunity for the parties to be heard on this issue. Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).
Provided some meritorious reason is given.
- Rule that the judge retains plenary control over judgments and orders during the term at which the judgments and orders are rendered was never intended to authorize a judge to set aside a judgment duly and regularly entered, unless some meritorious reason is given therefor. Hicks v. Hicks, 226 Ga. 798, 177 S.E.2d 690 (1970).
Failure to give notice of trial.
- Because a judgment was entered in contravention of a party's due process rights to notice, the trial court was authorized to set the judgment aside. Crenshaw v. Crenshaw, 267 Ga. 20, 471 S.E.2d 845 (1996).
Power to vacate consent order.
- Under the court's power to revise, correct, revoke, modify, or vacate a judgment or order if a meritorious reason exists for doing so, a trial court properly reconsidered and vacated a consent order transferring the case. Southern Drayage, Inc. v. Williams, 216 Ga. App. 721, 455 S.E.2d 418 (1995).
Court has inherent power to modify the court's own judgment during the term at which the judgment was rendered, and this power may be exercised on the court's own motion, with or without notice to the parties. Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975); Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979).
Because the superior court modified the court's judgment so as to vacate the court's order of dismissal and provide only for the entry of a default judgment, the issue of dismissal was moot and provided no basis for setting aside the judgment. But, because the court, absent amendment to the demand for judgment or argument supporting the judgment, awarded damages in excess of the amount claimed, that award had to be reversed. Stamps v. Nelson, 290 Ga. App. 277, 659 S.E.2d 697 (2008).
In exercise of sound discretion.
- Trial judge has inherent power, during the same term of court in which a judgment is rendered, to revise, correct, revoke, modify, or vacate such judgment, even upon the judge's own motion, for the purpose of promoting justice and in the exercise of sound legal discretion. LeCraw v. Atlanta Arts Alliance, Inc., 126 Ga. App. 656, 191 S.E.2d 572 (1972).
Trial judge has power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment in the exercise of the judge's discretion. Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278 (1979); McCoy Lumber Co. v. Garland Lumber Sales, Inc., 182 Ga. App. 75, 354 S.E.2d 686 (1987).
Power over judgments not unlimited but discretionary.
- Courts of record retain control over their orders and judgments during the term at which the judgments are made and, in the exercise of sound discretion, may revise or vacate the judgment; but the power to so deal with a judgment is not an unlimited or arbitrary power, but a discretionary one. Burger v. Dobbs, 87 Ga. App. 88, 73 S.E.2d 75 (1952) (decided under former Code 1933, Ch. 7, T. 110).
Law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in the judgment's nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion when it is necessary to do it in order to promote justice. Burger v. Dobbs, 87 Ga. App. 88, 73 S.E.2d 75 (1952) (decided under former Code 1933, Ch. 7, T. 110).
Power of court over judgment ceases with expiration of term.
- Subsection (h) of this section has not changed the rule that after the expiration of the term at which a decree was entered, the decree is out of the power of the court to modify and revise the decree in any matter of substance or in any matter affecting the merits. City of Cornelia v. Gunter, 227 Ga. 464, 181 S.E.2d 489 (1971).
After expiration of the term at which a decree is entered, it is out of the power of the court to modify and revise the decree in any matter of substance or in any matter affecting the merits. Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975).
After a judgment has become final and the court's discretion to change or modify the judgment ceases because a new term of court has supervened, the court can in no event set aside such judgment, unless the judgment is absolutely void, by an ex parte order and in the absence of notice and hearing afforded to the opposite party. Adams Drive, Ltd. v. All-Rite Trades, Inc., 136 Ga. App. 703, 222 S.E.2d 174 (1975).
With few exceptions, judgment may not be set aside beyond term in which judgment is rendered. Hughes v. Powell, 152 Ga. App. 851, 264 S.E.2d 303 (1980).
Statutory power to set aside judgment from others term.
- Trial court is not authorized at a subsequent term of court to set aside a final judgment rendered at a prior term, except as provided in this section. Holloman v. Holloman, 228 Ga. 246, 184 S.E.2d 653 (1971).
Jurisdiction to set aside dismissal after term expires.
- Judgment of dismissal for want of prosecution is a final judgment, and the trial court has no jurisdiction to set aside such dismissal after expiration of the term of court during which the judgment was entered, absent compliance with this section. Stocks v. Colonial Stores, Inc., 143 Ga. App. 722, 240 S.E.2d 151 (1977).
Trial court has no jurisdiction to set aside a dismissal and reinstate a case after expiration of the term at which the case was dismissed, nor can a judgment of the court be changed, amended, or modified after the expiration of the term during which that judgment was entered. Stocks v. Colonial Stores, Inc., 143 Ga. App. 722, 240 S.E.2d 151 (1977).
Just cause required to set aside or modify judgment.
- Subsection (h) of this section, dealing with the law of the case rule, provides that with just cause a judgment may be set aside or modified, the court of course considering whether rights are vested and whether or not innocent parties would be hurt. Camera Shop, Inc. v. GAF Corp., 130 Ga. App. 88, 202 S.E.2d 241 (1973).
Although the law of the case rule, at the trial level, has been abolished, an order should not be set aside or modified without just cause, and the burden is on the movant to demonstrate that the movant is entitled to judgment as a matter of law. Tanner v. Tinsley, 152 Ga. App. 330, 262 S.E.2d 602 (1979).
Continuing jurisdiction of foreign court.
- Because a Florida court issued an original custody decree, subsequently issuing a modification, and because one of the "individual contestants" continued to live in Florida and did not consent to the Georgia court's jurisdiction, Florida exercised "continuing, exclusive" jurisdiction, a Georgia county court erred in entering an order domesticating the final divorce decree and increasing the amount of child support, and the superior court should have granted the plaintiff's motion to set aside the order. Connell v. Woodward, 235 Ga. App. 751, 509 S.E.2d 647 (1998).
No power over judgment once appeal taken.
- Although, as a general proposition, the trial court has power to correct mistakes in judgments, a notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed so that subsequent proceedings purporting to supplement, amend, alter, or modify the judgment, whether pursuant to statutory or inherent power, are without effect. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525, 258 S.E.2d 139 (1979).
Habeas court lacked jurisdiction to amend the court's original order during the pendency of an appeal from that order as the filing of the notice of appeal operated as a supersedeas and deprived the trial court of the power to affect the judgment appealed. Upton v. Jones, 280 Ga. 895, 635 S.E.2d 112 (2006).
Court of appeals erred in reversing the trial court's grant of partial summary judgment in favor of a county because the trial court did not have authority to enter the court's order purporting to make the grant of partial summary judgment final under O.C.G.A. § 9-11-54(b) since by the arrestee's first notice of appeal, an arrestee put the machinery of appellate review into motion under O.C.G.A. § 9-11-54(h) and committed a procedural default; accordingly, the arrestee was foreclosed from resubmitting the matter for review on appeal of the final judgment, and because the first direct appeal was dismissed, that dismissal was binding upon the trial court under O.C.G.A. § 9-11-60(h). Houston County v. Harrell, 287 Ga. 162, 695 S.E.2d 29 (2010).
Cause in which the trial court has been reversed on appeal is still pending in the trial court for further proceedings, or until what is de facto ordered to be done by the appellate court's reversal is done. West v. Dorsey, 167 Ga. App. 233, 305 S.E.2d 840 (1983), rev'd on other grounds, 252 Ga. 92, 311 S.E.2d 816 (1984).
Collateral Attack
O.C.G.A. § 9-11-60 provides, generally, for collateral attack in any court by any person if a judgment is void on the judgment's face; otherwise, judgments are subject to direct attack only in the court of rendition by motions to set aside or for new trial or by complaint in equity. C & S Nat'l Bank v. Burden, 145 Ga. App. 402, 244 S.E.2d 244 (1978).
Timeliness.
- In a case in which a defendant filed a "petition seeking relief from judgment" under O.C.G.A. § 9-11-60(d)(2), after a trial court denied the defendant's habeas corpus petition, the "petition" could not be considered untimely as such a petition did not have to be filed in the same term of court in which the judgment the petition attacked was entered, but the "petition" was the wrong vehicle for seeking relief because the defendant did not allege the habeas court's judgment was obtained or procured by extrinsic fraud, accident, or mistake, which were the grounds upon which a motion under § 9-11-60(d)(2) could be granted. If the "petition" was considered to be a motion for reconsideration of the merits of the habeas court's judgment, it would have been untimely filed as such a motion had to be filed in the same term of court in which the judgment the petition attacked was entered. Harris v. State, 278 Ga. 280, 600 S.E.2d 592 (2004).
For a judgment to be attacked by third person it must be void on the judgment's face. Peek v. Southern Guar. Ins. Co., 142 Ga. App. 671, 236 S.E.2d 767 (1977), rev'd on other grounds, 240 Ga. 498, 241 S.E.2d 210 (1978).
Judgment is "void on its face" when a nonamendable defect appears on the face of the record or pleadings that is not cured by verdict or judgment, and the pleadings affirmatively show that no legal claim in fact existed. Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977); Albitus v. F & M Bank, 159 Ga. App. 406, 283 S.E.2d 632 (1981); Lawing v. Erwin, 251 Ga. 134, 303 S.E.2d 444 (1983).
Collateral attacks provided for under O.C.G.A. § 9-11-60 are limited strictly to circumstances in which the trial court lacks either subject matter or personal jurisdiction, rendering such a judgment "void on its face" within the meaning of subsection (a), such that a nonamendable defect appearing on the face of the pleadings in a divorce suit was not such a judgment and was presentable only within the three-year limitations period of subsection (f). Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993).
In a suit for damages arising from a motor vehicle accident, a trial court erred by failing to set aside a default judgment entered against a transport corporation for the corporation's failure to file an answer to an amended complaint as no order from the trial court required the corporation to answer. As a result, the default judgment was improper since the default created a nonamendable defect. Hiner Transp., Inc. v. Jeter, 293 Ga. App. 704, 667 S.E.2d 919 (2008).
If a nonamendable defect appears on the face of the record or pleadings, judgment is void and may be collaterally attacked by any person when the judgment becomes material to the interests of the parties to consider it. Cooper v. Public Fin. Corp., 144 Ga. App. 572, 241 S.E.2d 839 (1978).
Void judgment is a mere nullity, and may be so held in any court when the judgment becomes material to the interest of the parties to consider the judgment; laches is no bar. DeJarnette Supply Co. v. F.P. Plaza, Inc., 229 Ga. 625, 193 S.E.2d 852 (1972).
Judgment regular on its face not subject to collateral attack.
- Judgment of superior court cannot be collaterally attacked, unless the invalidity of such a judgment appears on the judgment's face; any attack upon such a judgment not void on the judgment's face must be made in a direct proceeding for that purpose. Payne v. McCrary, 187 Ga. 573, 1 S.E.2d 742 (1939) (decided under former Code 1933, Ch. 7, T. 110).
If an order is not void upon the order's face, but appears upon the order's face to be perfectly legal and binding, such order may not be attacked collaterally in a proceeding praying for mandamus only. Poole v. Doyal, 203 Ga. 667, 47 S.E.2d 744 (1948) (decided under former Code 1933, Ch. 7, T. 110).
Although a judgment rendered by a court lacking jurisdiction of the parties or of the subject matter is void and may be attacked by any party in any court where such want of jurisdiction appears upon the face of the record, the judgment of a court of competent jurisdiction may not be collaterally attacked in any other court for irregularity, but shall be held as a valid judgment until the judgment is reversed or set aside. Thompson v. Central of Ga. Ry., 98 Ga. App. 228, 105 S.E.2d 508 (1958) (decided under former Code 1933, Ch. 7, T. 110).
If a judgment does not show on the judgment's face that the judgment is void for lack of jurisdiction of the subject matter or of the parties, it will only be subject to direct attack. Logan v. Nunnelly, 128 Ga. App. 43, 195 S.E.2d 659 (1973).
Action against an insurer arising from settlement of a minor's claim for personal injuries reached over 20 years prior was an improper collateral attack on the judgment of the court that approved the settlement and should have been dismissed. Zepp v. Toporek, 211 Ga. App. 169, 438 S.E.2d 636 (1994).
Alleged conspiracy to issue a writ of possession in a case would not render the judgment therein void on the judgment's face, and the judgment could be subject only to direct rather than collateral attack. Dean v. Schreeder, Wheeler & Flint, 222 Ga. App. 426, 474 S.E.2d 648 (1996).
Superior court lacked jurisdiction to vacate or set aside an order of the state court that was not void on the order's face and that had been affirmed on appeal. Moseley v. Interfinancial Mgt. Co., 224 Ga. App. 80, 479 S.E.2d 427 (1996), cert. denied, 522 U.S. 925, 118 S. Ct. 322, 139 L. Ed. 2d 249 (1997).
Since the allegations in a joint suit would not render the judgments in the prior suits void on their face, the effect of the joint suit was to collaterally attack the judgments in the prior suits in violation of O.C.G.A. § 9-11-60. Richardson v. Simmons, 245 Ga. App. 749, 538 S.E.2d 830 (2000).
Attorney's defense to the trial court's order holding the attorney in contempt for the attorney's refusal to turn over a client's file challenging the underlying validity of the prior order requiring the attorney to turn over the file was a collateral attack that could be sustained under O.C.G.A. § 9-11-60(a) only if the prior order was void on the order's face. However, the trial court's prior order was not void on the order's face since: (1) the attorney was served with a motion to compel prior to the entry of the prior order; (2) the trial court had jurisdiction to issue an order to compel a nonparty to release necessary non-privileged documents specifically prepared in anticipation of a divorce action pending before the trial court under O.C.G.A. §§ 9-11-26(b),9-11-34(c)(1), and9-11-37(a); (3) the attorney willfully disregarded the prior order; and (4) the prior order was entered in a matter over which the trial court had subject matter jurisdiction, making its disobedience contempt of court. Mary A. Stearns, P.C. v. Williams-Murphy, 263 Ga. App. 239, 587 S.E.2d 247 (2003).
When a citizen failed to show that the judgment in the citizen's first case lacked either personal or subject matter jurisdiction, the citizen failed to show that the judgment was void; because the original order was not appealed, the citizen was not permitted to relitigate that same issue in a later action. Nally v. Bartow County Grand Jurors, 280 Ga. 790, 633 S.E.2d 337 (2006).
Trial court properly dismissed a business' contribution action, filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds as: (1) the court's finding that the business was the sole tortfeasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).
Trial court properly granted summary judgment to a law firm and one of the firm's attorneys because the claims that formed the litigation constituted an unauthorized collateral attack on the settlement the mother accepted in an underlying medical malpractice action. Buttacavoli v. Owen, Gleaton, Egan, Jones & Sweeney LLP, 331 Ga. App. 88, 769 S.E.2d 794 (2015), cert. denied, 2015 Ga. LEXIS 416 (Ga. 2015).
Absent fraud.
- If a judgment is regular on the judgment's face, the presumption is that there was sufficient evidence to authorize the judgment, and the judgment is conclusive as to the subject matter that the judgment purports to decide until the judgment is reversed or impeached for fraud; the judgment cannot be attacked collaterally on account of any error or want of regularity in its exercise. Rowell v. Rowell, 214 Ga. 377, 105 S.E.2d 19 (1958) (decided under former Code 1933, Ch. 7, T. 110).
Judgment procured by fraud must be deemed absolutely void before the judgment can be collaterally attacked. Wood v. Wood, 200 Ga. 796, 38 S.E.2d 545 (1946) (decided under former Code 1933, Ch. 7, T. 110).
Trial court did not err in setting aside the alimony and equitable division portions of a divorce decree in a case in which one spouse proved that the other spouse fraudulently hid assets to prevent their equitable division during the divorce, as under O.C.G.A. § 9-11-60(d)(2), fraud is a ground for setting aside a judgment. White v. White, 274 Ga. 884, 561 S.E.2d 801 (2002).
Judgment or decree of court having no jurisdiction is a mere nullity and may be attacked in any court and by any person. Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573 (1939) (decided under former Code 1933, Ch. 7, T. 110).
Void judgment may be attacked in any court by any person. Dupree v. Blankenship, 83 Ga. App. 664, 64 S.E.2d 457 (1951) (decided under former Code 1933, § 110-701).
Third person not a party cannot go into court and move to set aside a judgment that is not against that party. Merchants' & Mfrs'. Nat'l Bank v. Haiman, 80 Ga. 624, 5 S.E. 795 (1888) (decided under former law); Suwannee Turpentine Co. v. Baxter & Co., 109 Ga. 597, 35 S.E. 142 (1900); Chapman v. Taliaferro, 1 Ga. App. 235, 58 S.E. 128 (1907) (decided under former law);(decided under former law).
In motions to set aside, only parties to the record can make a motion. Bruce v. Neal Bank, 147 Ga. 392, 94 S.E. 241 (1917) (decided under former Civil Code 1910, § 5957).
One not a party to a judgment cannot on mere motion procure the judgement to be set aside. Bivins v. Fleischer, 214 Ga. 380, 105 S.E.2d 12 (1958) (decided under former Code 1933, §§ 37-219 and 110-710).
When the owners of a corporation sued waived a forum selection clause, the owners also waived the defenses of personal jurisdiction and venue by failing to raise those defenses at the earliest opportunity; thus, as non-parties to the underlying case, the owners could not otherwise appeal the default judgment against the corporation. Rice v. Champion Bldgs., Inc., 288 Ga. App. 597, 654 S.E.2d 390 (2007), cert. denied, 2008 Ga. LEXIS 326 (Ga. 2008).
O.C.G.A.
§ 9-11-60 inapplicable to individual not a party to judgment. - Action against the attorney who represented a minor arising from the settlement of the minor's claim for personal injuries reached over 20 years prior was not barred by O.C.G.A. § 9-11-60 since the claim alleging that the attorney violated the attorney's professional obligations to the minor arose from the attorney's services as such. Zepp v. Toporek, 211 Ga. App. 169, 438 S.E.2d 636 (1994).
Consent judgment not subject to collateral attack for want of assent.
- Consent judgment showing on the judgment's face that the judgment is a consent judgment cannot be attacked collaterally for want of assent; the attack must be by direct proceedings for that purpose, brought within the three-year period provided by law. Evans v. Evans, 62 Ga. App. 618, 9 S.E.2d 99 (1940) (decided under former Code 1933, Ch. 7, T. 110).
Consent judgment was not void on the judgment's face; thus, if the objectors wished to attack the consent judgment, it had to be done in the court where the judgment was rendered, which was the Superior Court of Gwinnett County. Merchant v. Ultra Grp. of Cos. (In re Al-Karim, Inc.), 529 Bankr. 366 (Bankr. N.D. Ga. 2015).
Collateral attack for fraud on judgment of foreign court.
- Judgment of a court of a foreign state having jurisdiction of the subject matter and the parties cannot be collaterally attacked in the courts of this state on the ground of fraud. Wood v. Wood, 200 Ga. 796, 38 S.E.2d 545 (1946) (decided under former Code 1933, Ch. 7, T. 110).
Jurisdiction to set aside judgment affecting property.
- Action to enjoin the sale or encumbrance of property in accordance with certain judgments was actually a collateral attack to set aside adverse judgments, and could only be entertained in the jurisdiction of the rendering court since the judgments were not void on the judgments' face. Williams v. Nuckolls, 229 Ga. 48, 189 S.E.2d 82 (1972) (decided under former Code 1933, Ch. 7, T. 110).
Conviction based on a guilty plea to an unenforceable ordinance is void on the conviction's face and a mere nullity, and may be attacked. Cofer v. Cook, 141 Ga. App. 646, 234 S.E.2d 185 (1977).
Collateral attack is proper in a license suspension case, if conviction on which the suspension was based is void on the conviction's face. Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980).
Judgment based on insufficient service.
- If service is insufficient to give the court jurisdiction to render a judgment, and there is no waiver of service, the judgment may be attacked by any person whose rights are affected by the judgment. Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150 (1973).
Levy under a void judgment against garnishee may be successfully resisted by an affidavit of illegality, alleging invalidity in the judgment. Jenkins v. Community Loan & Inv. Corp., 120 Ga. App. 543, 171 S.E.2d 654 (1969).
Motion to dismiss contempt citation for failure to pay alimony.
- Motion to dismiss a contempt citation for failure to pay alimony makes a collateral attack on the alimony judgment, which can only be sustained if the judgment is absolutely void. Lambert v. Gilmer, 228 Ga. 774, 187 S.E.2d 855 (1972).
Insufficient evidence.
- Judgment may not be collaterally attacked on the ground that the judgment was based on insufficient evidence. Lawing v. Erwin, 251 Ga. 134, 303 S.E.2d 444 (1983).
Uninsured Motorist Act is not an exception. There is absolutely nothing within the terms of the Uninsured Motorist Act to evince a legislative intent that a judgment, otherwise valid on the judgment's face, is not to be afforded the statutory protection against collateral attack simply because that judgment was obtained in an action against an uninsured motorist. Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 377 S.E.2d 210, cert. denied, 189 Ga. App. 911, 377 S.E.2d 210 (1988).
Insurer could not collaterally attack a judgment against an uninsured motorist, in the insured's action to recover a judgment, by relying on extraneous evidence to show that the uninsured motorist had not been properly served in the underlying action. Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 377 S.E.2d 210, cert. denied, 189 Ga. App. 911, 377 S.E.2d 210 (1988).
No relief against judgment creditor for fraudulently securing judgment.
- Law provides various forms of relief that can be pursued by one who believes that a judgment has been wrongly entered. However, a cause of action for damages based upon the judgment creditor's alleged fraudulent securing of the judgment is not among them. Matthews Group & Assocs. v. Wages, 180 Ga. App. 151, 348 S.E.2d 695 (1986).
Collateral attack on foreign judgment.
- Collateral attack on a judgment entered in another state, based on lack of personal jurisdiction of the foreign court, is precluded only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 265 S.E.2d 848 (1980).
Plaintiff's judgment obtained in Texas by default against a Georgia resident was properly set aside when the plaintiff failed to negate the defense of lack of personal jurisdiction. Chambers v. Navare, 231 Ga. App. 318, 498 S.E.2d 173 (1998).
In a Tennessee case in which there was no proof that the Georgia court lacked jurisdiction over either the mother or the subject matter when the court ordered the termination of the mother's parental rights, the mother could not mount a collateral attack on the Georgia termination order. Downey v. Downey (In re Adoption of Downey), - S.W.3d - (Tenn. Ct. App. Apr. 30, 2003).
Collateral attack of summary judgment.
- Debtor could not collaterally attack the trial court's prior summary judgment order through the filing of a subsequent lawsuit because the trial court's prior summary judgment order was not void on the judgment's face; thus, the only manner in which the debtor could have attacked the judgment was through a direct proceeding brought in the trial court that entered the judgment pursuant to O.C.G.A. § 9-11-60. Rose v. Household Fin. Corp., 316 Ga. App. 282, 728 S.E.2d 879 (2012).
Motion for New Trial
Extraordinary motions for new trial were still an available procedure under former Code 1933, § 70-303 and Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. §§ 5-6-41 and9-11-60). Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 175 S.E.2d 65 (1970).
Motion for new trial goes only to the verdict, and reaches only such errors of law and fact as contributed to rendition thereof. Alexander v. Blackmon, 129 Ga. App. 214, 199 S.E.2d 376 (1973).
Proper venue required.
- In an action which represented the tenth time a litigant had made the same argument that summary disposition of a prior state court case deprived the litigant of the federal Seventh Amendment right to a jury trial, a motion for a new trial was properly dismissed given that: (1) the claims therein had been previously addressed and rejected; (2) Ga. Const. 1983, Art. I, Sec. I, Para. XII was a right of choice provision, not a right of access provision; and (3) the motion was both untimely under O.C.G.A. § 5-5-40(a), and filed in the wrong county court, in violation of O.C.G.A. § 9-11-60(b). Crane v. Poteat, 282 Ga. App. 182, 638 S.E.2d 335 (2006), cert. denied, 2007 Ga. LEXIS 54 (Ga. 2007); cert. dismissed, 551 U.S. 1101, 127 S. Ct. 2912, 168 L. Ed. 2d 241 (2007).
Negligence of party or counsel.
- Plaintiff's negligence in failing to prepare for trial, and the plaintiff and plaintiff's counsel's lack of diligence in following the progress of the proceedings, did not equate with an intrinsic defect necessitating a new trial, and the lack of showing of a legal excuse for the plaintiff's non-appearance at trial supported the trial court's order denying the plaintiff's motion for a new trial. Scriver v. Lister, 235 Ga. App. 487, 510 S.E.2d 59 (1998).
In a medical malpractice action, a motion for new trial asserting new evidence was properly denied due to a lack of the movant's diligence to procure the evidence as the new evidence was the identity of a witness who was revealed to the movant on the eve of trial, the movant declined the trial court's offer of a continuance to locate the witness, and did not attempt to locate the witness until after a verdict was returned. Gill v. Spivey, 264 Ga. App. 723, 592 S.E.2d 132 (2003).
It is not proper to contest sufficiency of an opponent's pleadings by motion for new trial. Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974); Pillow v. Seymour, 255 Ga. 683, 341 S.E.2d 447 (1986).
Motion for new trial required for evidentiary matters.
- Ordinarily, a motion for new trial is required if a motion is made to set aside a judgment based solely upon matters of evidence or want of evidence, and if the motion is denominated a motion in arrest or to set aside, it will be considered a motion for new trial if it meets the requirements for attacking the verdict. Adams v. Morgan, 114 Ga. App. 180, 150 S.E.2d 556, cert. dismissed, 222 Ga. 820, 152 S.E.2d 693 (1966) (decided under former Code 1933, Ch. 7, T. 110).
Exclusion of evidence.
- General partners' motion for a new trial was properly denied as evidence of the limited partners' attempts to liquidate their interests in the partnership was properly excluded as evidence of settlement negotiations. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310 (2006).
Evidence properly admitted.
- General partners' (GPs') motion for a new trial was properly denied as evidence of a GP's involvement in a prior suit was properly admitted to show a course of conduct because the prior suit also involved a breach of a partnership agreement, a breach of fiduciary duty, a nursing home, and accusations that the GP violated the plain language of the partnership agreement by failing to pay the limited partners their preferred returns. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310 (2006).
Ground of motion for new trial must be complete in itself. Blakeney v. Bank of Hahira, 176 Ga. 190, 167 S.E. 114 (1932); Anderson v. State, 46 Ga. App. 728, 169 S.E. 60 (1933) (decided under former Civil Code 1910).
Availability of motions for new trial after involuntary dismissal.
- After an order of involuntary dismissal under Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(b)), extraordinary motions for new trial are still available under former Code 1933, § 70-303 and Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. §§ 5-5-41 and9-11-60). Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 217 S.E.2d 436 (1975).
Verdict based on perjured testimony.
- Extraordinary motions for new trial are available if a verdict and judgment are based on the testimony of a witness who is subsequently found guilty of perjury. Windsor Forest, Inc. v. Rocker, 121 Ga. App 773, 175 S.E.2d 65 (1970).
Extraordinary motions for new trial rest largely within the trial court's discretion and the court's judgment will not be interfered with unless the court's discretion has been manifestly abused. Windsor Forest, Inc. v. Rocker, 121 Ga. App. 773, 175 S.E.2d 65 (1970).
Sentencing order on a criminal attempt count was vacated because the trial court was without authority to enter a February 2018 sentence since the Georgia Supreme Court had already determined that the appellant was not convicted of felony murder or criminal attempt, which was the law of the case, and prevented the trial court from revisiting the issue and the court inappropriately granted a new trial. Hollmon v. State, 305 Ga. 90, 823 S.E.2d 771 (2019).
Objections that go to judgment only cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981).
Juror misconduct.
- General partners' (GPs') motion for a new trial was properly denied as the juror affidavits filed by the GPs outlining alleged juror misconduct constituted an attempt to impeach the jury's verdict in the exact manner prohibited by O.C.G.A. § 9-10-9. Kellett v. Kumar, 281 Ga. App. 120, 635 S.E.2d 310 (2006).
Reason for the rule that a new trial motion must go to findings of fact is that a new trial is necessarily authorized only if errors occurred that might have affected the findings of the trier of fact; if it is only the judgment thereon that is alleged to be erroneous or illegal, this alludes to a matter of law only and there is no need for a new trial, but the party must merely take direct exception at the proper time. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).
Motion to re-open considered motion for new trial.
- Motion to re-open a case, based upon the failure to adjudicate a material issue, is in essence a motion for new trial under which must be based upon an intrinsic defect not appearing upon the face of the record or pleadings. Gabel v. Revels, 203 Ga. App. 131, 416 S.E.2d 103 (1992).
Denial of application for discretionary review could have been based merely on a determination that the application was rendered redundant and unnecessary by the pendency of a present appeal and did not constitute a prior adjudication of the merits of the present appeal. Berger & Washburne Ins. Agency, Inc. v. Commercial Ins. Brokers, Inc., 204 Ga. App. 146, 418 S.E.2d 640 (1992).
Court erred in failing to hold hearing on motion.
- Trial court erred in denying a hotel owner's motion for new trial without holding the hearing mandated by Ga. Unif. Super. Ct. R. 6.3; while the motion reiterated arguments made in the owner's unsuccessful motion to set aside a default judgment, the motion also argued that evidentiary errors occurred during the trial on damages and that the award was excessive, and thus sought a reexamination of the issues of fact. PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 726 S.E.2d 569 (2012), cert. denied, No. S12C1257, 2012 Ga. LEXIS 1041 (Ga. 2012).
Motion to Set Aside
Editor's note.
- As originally enacted, the first sentence of subsection (d) of O.C.G.A. § 9-11-60 stated that a motion to set aside must be predicated on some nonamendable defect which does appear on the face of the record or pleadings. Georgia Laws 1974, p. 1138, § l, added the exception relating to jurisdictional errors. Hence, decisions relating to motions to set aside predicated on jurisdictional errors, based on O.C.G.A. § 9-11-60 prior to its 1974 amendment, should be consulted with care.
Constitutionality of subsection (d).
- Subsection (d) of this section is not unconstitutionally vague. Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976).
Subsection (d) as revision of prior law.
- Subsection (d) of this section does not purport to resemble Fed. R. Civ. P. 60; it is a revision of the earlier law that was found prior to 1966 in former Code 1933, Ch. 7, T. 110, and as far back as the Code of 1873. Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976).
Subsection (e) inapplicable to motions under subsection (d).
- When an individual files a motion under subsection (d) of this section, subsection (e) and the equitable principles set forth therein are inapplicable. Eder v. American Express Co., 138 Ga. App. 168, 225 S.E.2d 737 (1976).
Based on notice under O.C.G.A.
§ 15-6-21(c). - Judgment was entered by the trial court based on a jury verdict in favor of the defendant, and the trial court instructed the defendant to mail a notice of the judgment to the plaintiff, which the plaintiff admittedly timely received; thus, the mandate of O.C.G.A. § 15-6-21(c) was met and the trial court properly denied the plaintiff's motion to set aside the judgment pursuant to O.C.G.A. § 9-11-60(g); although the trial court did not make a specific finding as to whether the notice requirements of § 15-6-21(c) were met, the facts that supported denial of the motion to set aside were set out and those indicated compliance with the notice statute. Woods v. Savannah Rest. Corp., 267 Ga. App. 387, 599 S.E.2d 338 (2004).
Trial court properly set aside the dismissal of a declaratory judgment action brought by putative heirs against two trustees of an estate as the trial court failed to provide notice of a peremptory calendar call the case was placed on, which led to the dismissal, therefore, the trial court had the authority to correct the error. Andrus v. Andrus, 290 Ga. App. 394, 659 S.E.2d 793 (2008).
Construction with O.C.G.A. § 5-6-34. - Wife's appeal of a judgment granting a husband's motion under O.C.G.A. § 9-11-60(d)(2) to set aside an order awarding the wife sole legal and physical custody of the parties' children, eliminating the husband's right of visitation, and increasing the husband's child support obligations was a "custody case" subject to direct appeal pursuant to O.C.G.A. § 5-6-34(a)(11); the grant of a motion to set aside in a child custody case is directly appealable, and an action seeking to change visitation qualifies for treatment as a "child custody case". Edge v. Edge, 290 Ga. 551, 722 S.E.2d 749 (2012).
Court of appeals was unable to determine whether the trial court's denial of a driver's motion under O.C.G.A. § 9-11-60(g) to set aside an order dismissing a lawsuit was proper because the trial court made no findings of fact about whether the court sent the notice of the order of dismissal to the driver as required by O.C.G.A. § 15-6-21(c); the driver submitted affidavits in which members and employees of the driver's law firm attested that the firm did not receive notice of the order of dismissal, which also was some evidence that notice was not sent. Tyliczka v. Chance, 313 Ga. App. 787, 723 S.E.2d 27 (2012).
Construction with O.C.G.A. § 5-6-35. - While the denial of a motion to set aside may be considered appealable in its own right when the motion is filed pursuant to subsection (d) of O.C.G.A. § 9-11-60, the right of appeal is conditioned, under such circumstances, upon compliance with the application procedures set forth in O.C.G.A. § 5-6-35. North Carolina Constr. Co. v. Action Mobilplatform, Inc., 187 Ga. App. 507, 370 S.E.2d 800 (1988).
Appeals from the denial of a motion to set aside the judgment under subsection (d) of O.C.G.A. § 9-11-60 are subject to the discretionary appeals procedure (O.C.G.A. § 5-6-35(a)(8)), even when coupled with motions for a new trial or judgment n.o.v. ( § 5-6-35(d)). Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265, cert. denied, 199 Ga. App. 906, 405 S.E.2d 265 (1991).
Appeal from an order denying a motion to set aside filed pursuant to subsection (d) of O.C.G.A. § 9-11-60 is subject to the application procedures set forth in O.C.G.A. § 5-6-35(b). Agency Mgt. Servs. v. Escape Travel/Tour Servs., 199 Ga. App. 882, 406 S.E.2d 285 (1991); TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 424 S.E.2d 71 (1992).
Order that simultaneously denies both a motion for new trial and a motion to vacate or set aside a judgment is not directly appealable. Gooding v. Boatright, 211 Ga. App. 221, 438 S.E.2d 685 (1993).
Denial of a defendant's motion to set aside the judgment required an application for discretionary appeal. Bonnell v. Amtex, Inc., 217 Ga. App. 378, 457 S.E.2d 590 (1995).
Appeal from a denial of a motion for relief from a foreign judgment based on the foreign state's lack of personal jurisdiction was subject to the discretionary appeal statute, O.C.G.A. § 5-6-35. Okekpke v. Commerce Funding Corp., 218 Ga. App. 705, 463 S.E.2d 23 (1995).
Although the denial of a motion to set aside a judgment was ordinarily subject to the discretionary appeal procedure, O.C.G.A. § 5-6-35(a)(8), the denial of a stepson's motion to set aside was reviewable in conjunction with the stepson's appeal from the superior court's judgment reviewing the probate court's decision because the superior court's judgment reviewing the probate court's decision was directly appealable under O.C.G.A. § 5-6-34(a)(1). Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).
Construction with O.C.G.A. § 34-9-106. - In a worker's compensation action, because an employer's motion to set aside an award in favor of an injured employee focused exclusively on issues that the employer could have had corrected in a direct appeal to the Workers' Compensation Board, or in the hearing before the administrative law judge, the superior court did not abuse the court's discretion in denying that motion. Winnersville Roofing Co. v. Coddington, 283 Ga. App. 95, 640 S.E.2d 680 (2006).
Construction with O.C.G.A. § 15-6-21. - Because the trial court failed to make an explicit finding of wilfulness in the court's order dismissing the plaintiff's case for failure to comply with an order compelling discovery, dismissal was reversed, and the case was remanded for a hearing on the issue; as a result, the appeals court declined to consider an argument that the plaintiff's counsel did not receive notice of the order compelling discovery, pursuant to O.C.G.A. § 15-6-21(c), as any remedy for an alleged lack of notice was to pursue a motion to set aside pursuant to O.C.G.A. § 9-11-60(d)(2). Rouse v. Arrington, 283 Ga. App. 204, 641 S.E.2d 214 (2007).
Trial court did not abuse the court's discretion denying the plaintiff's motion to set aside the judgment pursuant to O.C.G.A. § 9-11-60(g) because it was unrefuted that the trial court mailed the order to the address on record, although it was later returned stamped undeliverable and the court followed through with the duty imposed upon the court by O.C.G.A. § 15-6-21(c). Syed v. Merchant's Square Office Bldgs., LLC, 354 Ga. App. 365, 841 S.E.2d 8 (2020).
Construction with O.C.G.A. § 14-11-304. - Trial court did not abuse the court's discretion in denying a motion to set aside a consent judgment entered against a debtor, a limited liability company, as the fact that the company's sole member did not receive notice of the complaint or approve the consent judgment was insufficient to warrant that relief as the member was considered a separate legal entity from the company. Old Nat'l Villages, LLC v. Lenox Pines, LLC, 290 Ga. App. 517, 659 S.E.2d 891 (2008).
Subsection (d) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) does not conflict with Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15(b)), relating to amendments to conform to the evidence. Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976).
O.C.G.A.
§ 9-11-15(b) does not overlap with subsection (d). - Ga. L. 1972, p. 689, § 6 (see now O.C.G.A. § 9-11-15(b)) only concerns amendments to conform to the evidence, and in no respect overlaps with subsection (d) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60). Moore v. American Fin. Sys., 236 Ga. 610, 225 S.E.2d 17 (1976).
Power of court.
- Judgment cannot be set aside unless the grounds relied upon are unmixed with the negligence or the fault of the movant; however, a trial court in the exercise of the court's discretion has inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify, or vacate the judgment and the exercise of such discretionary power will not be reversed in the absence of a manifest abuse of discretion. Young Constr., Inc. v. Old Hickory House #3, Inc., 210 Ga. App. 559, 436 S.E.2d 581 (1993).
Trial court abused the court's discretion when the court denied an insurer's motion to intervene as untimely and unmeritorious because it was so situated by the sisters' settlement that the disposition of the original action, including the entry of the default judgment against the other sister, the settlement, and the consequent withdrawal of the motion to set aside as a practical matter impaired or impeded its ability to protect its interest, which was not adequately represented by existing parties. Liberty Mut. Fire Ins. Co. v. Quiroga-Saenz, 343 Ga. App. 494, 807 S.E.2d 460 (2017).
Motion considered outside term in which judgment rendered.
- O.C.G.A. § 9-11-60 makes no distinction between fraud, accident, mistake, lack of jurisdiction, or a nonamendable defect as grounds for setting aside a judgment. Therefore, a motion to set aside a judgment based upon fraud, accident, or mistake may also be properly considered and granted outside of the term in which the judgment was granted. Wright v. Archer, 210 Ga. App. 607, 436 S.E.2d 775 (1993).
When a trial court erroneously granted an insured statutory damages against an insurer, for bad faith, under O.C.G.A. § 33-4-6, for each of 26 medical bills arising from one automobile accident, this was a nonamendable defect that appeared on the face of the record so the trial court could correct the court's judgment in the term of court after the term in which the judgment was entered by granting one statutory damages award for all claims arising from the accident. Byrd v. Regal Ins. Co., 275 Ga. App. 779, 621 S.E.2d 758 (2005).
Claim was unauthorized as basis and was outside time limit.
- In an action by a client against the client's former attorney, the client's claims that an order was invalid because the order was unreasonable, unlawful, ambiguous, or against public policy, or because the order resulted from the attorney's fraud or other wrongful acts, were either unauthorized as a basis for setting aside the judgment under O.C.G.A. § 9-11-60(d) or were raised outside of the three-year time limit of § 9-11-60(f). Hook v. Bergen, 286 Ga. App. 258, 649 S.E.2d 313 (2007), cert. denied, 2007 Ga. LEXIS 697 (Ga. 2007).
Consideration of all circumstances.
- Petitioner's case was remanded to the habeas court for it to consider the motion to set aside in a manner that takes into account the affidavit of habeas counsel in the context of all the circumstances of the case because the habeas court did not make a finding as to whether habeas counsel received notice of the final habeas hearing based on a consideration of the affidavit of habeas counsel thus, the habeas court's analysis was incomplete. Case v. State, 300 Ga. 208, 794 S.E.2d 93 (2016).
Stay pending arbitration.
- In an action between a contractor and a landowner alleging a breach of contract and other related claims in which disputes arising under the parties' contract were required to be submitted to arbitration the superior court erred in entering a default judgment against the landowner, and in denying relief from that judgment, ignoring a stay pending arbitration, as the issues involved in the litigation were ones that fell under the parties' agreement. GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14, 637 S.E.2d 511 (2006), cert. denied, 2007 Ga. LEXIS 157 (Ga. 2007).
Party must avail oneself of statutory procedure.
- Assuming, arguendo, that a dismissal was improperly vacated and set aside by means of a consent order, a subsequent action against others is not a proper forum for addressing that issue. Rather, a plaintiff must resort to the procedure set forth in subsection (b) of O.C.G.A. § 9-11-60 for setting aside a judgment. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988).
Court not required to hold evidentiary hearing.
- After a plaintiff attached only a list of documents to a motion to set aside a judgment, but not the documents themselves, and nothing indicated that the documents were newly discovered or that the documents showed the judgment was in error, the trial court was not required to hold an evidentiary hearing to develop the evidence. Hooper v. Harris, 236 Ga. App. 651, 512 S.E.2d 312 (1999).
Superior court cannot set aside state court judgment.
- Superior court of a county does not have authority to set aside a judgment of the state court of that county on the ground that publication of the state court calendar is legally insufficient notice of the trial date if the superior court is not the court of rendition. Loveless v. Conner, 254 Ga. 663, 333 S.E.2d 586 (1985).
Superior court could not set aside probate court order.
- Superior court did not have jurisdiction to set aside an order of the probate court dismissing a guardian when the probate court judgment was not void on the judgment's face. Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830, 490 S.E.2d 489 (1997).
Default judgment entered on an improper basis.
- Default judgment was entered against an insurer on an improper basis and therefore should have been set aside under O.C.G.A. § 9-11-60(d)(3); the trial court erred in deciding in an ex parte hearing without notice that the insurer's motion to dismiss filed in response to the insureds' complaint was an insufficient answer. Additionally, the motion to dismiss was a dispositive motion that should have been disposed of before a default judgment was entered. Central Mutual Insurance Company v. Kicklighter, 339 Ga. App. 658, 794 S.E.2d 258 (2016).
Trial court did not err when the court set aside the default judgment entered against the nonresident company on grounds that the court lacked personal jurisdiction over the company because the plaintiff's purported service on the company was deficient in that the entry of service form contained no indication that the individual who was served was authorized to accept service. Delta Aliraq, Inc. v. Arcturus Int'l, LLC, 345 Ga. App. 778, 815 S.E.2d 129 (2018).
Judgment not set aside before case transferred to superior court.
- Because a tenant's motion to set aside a default judgment in a dispossessory action was not granted, the default judgment stood as a final order, and the magistrate court's attempt to transfer the case to superior court by agreement of the parties was improper. Abushmais v. Erby, 282 Ga. 619, 652 S.E.2d 549 (2007).
Domestication of foreign judgment.
- If the party seeking to domesticate a foreign judgment fails to fulfill the party's burden in establishing the jurisdiction of the foreign court, the Georgia trial court may set aside the judgment. E. Howard St. Clair & Assocs. v. Northwest Carpets, Inc., 237 Ga. App. 537, 515 S.E.2d 660 (1999).
Uniform Enforcement of Foreign Judgments Law.
- Proper method for attacking a foreign judgment filed under the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-130 et seq., is a motion to set aside under O.C.G.A. § 9-11-60(d), and the only appealable judgment in a case when a creditor sought to domesticate a New Jersey judgment in Georgia was the order denying the motion to set aside; because the corporation and the individual failed to appeal the denial of the motion to set aside by application, the order directing the corporation and the individual to pay in accordance with the New Jersey judgment was a nullity and provided no basis for review so the appellate court had no jurisdictional basis for the appeal and the appeal was dismissed. Arrowhead Alternator, Inc. v. CIT Communs. Fin. Corp., 268 Ga. App. 464, 602 S.E.2d 231 (2004).
Appeal of an order denying the appellants' motion to vacate a foreign judgment was dismissed because the appellants failed to follow the correct procedure for appealing the trial court's decision; the appellants never filed a motion to set aside the judgment under O.C.G.A. § 9-11-60(d), which was the proper method for attacking a foreign judgment filed under the Uniform Enforcement of Foreign Judgments Law, O.C.G.A. § 9-12-130 et seq.; the underlying subject matter of the appellants' motions was an attempt to set aside a judgment, and the denial of the appellants' motions was subject to discretionary appeal because the underlying subject matter generally controlled over the relief sought in determining the proper procedure to follow to appeal. Noaha, LLC v. Vista Antiques & Persian Rugs, Inc., 306 Ga. App. 323, 702 S.E.2d 660 (2010).
Because a trial court was required by O.C.G.A. §§ 9-11-60 and9-12-132 to accord a foreign judgment full faith and credit if the judgment was proper under the law in which the judgment was rendered, the court erred in holding that Georgia law governed the filing of the debtors' answer in a New York case; the trial court erred in granting a motion to set aside the judgment since the debtors were in default for failing to timely serve an answer upon counsel in accordance with N.Y. C.P.L.R. 320(a), 2103(b). LeRoy Vill. Green Residential Health Care Facility, Inc. v. Downs, 310 Ga. App. 754, 713 S.E.2d 728 (2011).
In an action to enforce a foreign judgment from Arkansas, the trial court erred by setting aside the judgment against an individual defendant because that individual defendant appeared in the Arkansas court by filing in that court a motion to dismiss the action; thus, the individual defendant waived the defense of lack of personal jurisdiction by failing to raise the issue in the motion to dismiss in the Arkansas court. Carter v. Heritage Corner, Ltd., 320 Ga. App. 828, 741 S.E.2d 182 (2013).
Because a trial court was authorized only to address the merits of a motion to set aside a foreign default judgment under O.C.G.A. § 9-11-60(d), and the judgment debtor failed to file an application for discretionary appeal as required by O.C.G.A. § 5-6-35(a)(8), (b), (f), the court lacked jurisdiction over the appeal. Lemcon USA Corp. v. Icon Tech. Consulting, Inc., 338 Ga. App. 459, 789 S.E.2d 832 (2016).
Complaint seeking to set judgment aside for fraud treated as motion to set aside.
- Because the complaint was framed as an unauthorized complaint in equity, but was actually an effort to set aside the judgment of the probate court because of fraud, the plaintiff's complaint must be treated as a motion to set aside the judgment in which relief was denied. Manley v. Jones, 203 Ga. App. 173, 416 S.E.2d 744, cert. denied, 203 Ga. App. 907, 416 S.E.2d 744 (1992).
Defendant's motion to set aside based on fraud was properly dismissed because the fraud did not come within paragraph (d)(2) of O.C.G.A. § 9-11-60 and the defendant failed to exercise proper diligence to discover the forgery prior to judgment. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
Jurisdiction over workers' compensation award.
- Superior court, rather than the board of workers' compensation, is the proper forum for bringing a motion to set aside a workers' compensation award. Griggs v. All-Steel Bldgs., Inc., 201 Ga. App. 111, 410 S.E.2d 309 (1991), cert. denied, 201 Ga. App. 903, 410 S.E.2d 309 (1992).
Setting aside judgment on ground of mistake in workers' compensation action.
- Superior court abused the court's discretion in denying a city's motion to set aside a judgment granting a police officer's demand for judgment on the Workers' Compensation Board's award because the city was authorized to move to set aside the judgment on the ground of mistake under O.C.G.A. § 9-11-60(d)(2), and in the city's first opportunity to submit factual support for the city's argument regarding mistake, the city provided unrebutted evidence that a second stipulation and agreement the officer signed was entirely the product of a mistake; the failure of the city's effort to appeal the award to the superior court on the second stipulation and agreement was entirely the fault of the superior court because the superior court failed to issue a timely order on the city's initial appeal to that court, which resulted in an affirmance by operation of law of the Board's award. City of Atlanta v. Holder, 309 Ga. App. 811, 711 S.E.2d 332 (2011).
Superior court abused the court's discretion in denying a city's motion to set aside a judgment granting a police officer's demand for judgment on the Workers' Compensation Board's award because any earlier trial court orders were subject to a proper motion to set aside pursuant to O.C.G.A. § 9-12-40. City of Atlanta v. Holder, 309 Ga. App. 811, 711 S.E.2d 332 (2011).
Divorce granted by a court lacking personal jurisdiction is a nullity, and may be remedied by a motion to set aside the judgment in the court of rendition. Peters v. Hyatt Legal Servs., 211 Ga. App. 587, 440 S.E.2d 222 (1993).
Challenge to residency assertion in divorce case was challenge to court's jurisdiction.
- In a divorce case, a husband's enumerations of error raising the issue of the wife's residency under O.C.G.A. § 19-5-5(b)(2) were challenges to the trial court's jurisdiction over the subject matter; these related to a motion to set aside under O.C.G.A. § 9-11-60(d)(1). Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 690 S.E.2d 397 (2010).
Modification of juvenile court orders.
- Motion for modification of a juvenile court order terminating parental rights is similar to a motion to set aside under subsection (d) of O.C.G.A. § 9-11-60, which is appealable but does not sustain an appeal from the underlying judgment. In re H.A.M., 201 Ga. App. 49, 410 S.E.2d 319 (1991).
Adoption.
- Superior court erred in granting a mother's motion to dismiss a former partner's petition to adopt the mother's child because a judgment denying the mother's motion to set aside the adoption decree was res judicata as to the validity of the adoption decree, and the superior court that dismissed the partner's petition for custody was not entitled to revisit the validity of the decree; whether or not the superior court properly had jurisdiction of the question of adoption when the court entered the court's adoption decree, the court was competent to entertain the motion to set aside that decree and to decide, in connection with that motion, whether the court had jurisdiction when the court entered the decree. Bates v. Bates, 317 Ga. App. 339, 730 S.E.2d 482 (2012).
Petition for blood test.
- Putative father's petition for a blood test was, in substance, an extraordinary motion for a new trial based on newly discovered evidence, not characteristic of a motion to set aside, and was not subject to consideration pursuant to paragraph (d)(2) of O.C.G.A. § 9-11-60 in an attack upon an earlier consent judgment entered in a support proceeding. Department of Human Resources v. Browning, 210 Ga. App. 546, 436 S.E.2d 742 (1993).
Lack of grounds to set aside judgment.
- Trial court's third order regarding child support, effectively reopening the evidence regarding the husband's payment history and income and essentially retrying the wife's previous contempt action was error as there was no indication that the trial court found any of the limited, enumerated grounds to set aside a judgment. Jones v. Jones, 298 Ga. 762, 787 S.E.2d 682 (2016).
No limit on time for relief based on nonamendable section.
- Notwithstanding subsections (d) and (f) of O.C.G.A. § 9-11-60, a judgment in which there is a nonamendable defect apparent on the face of the record is always subject to attack by motion to set aside, regardless of the length of time the judgment has been in existence. Smyrna Marine, Inc. v. Stocks, 172 Ga. App. 426, 323 S.E.2d 286 (1984).
While in breast of court, a trial court may, in the court's discretion, set aside a judgment, even on a motion to set aside, in which there are no nonamendable defects on the face of the record. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).
Judge's decision on facts, while binding as jury's verdict, may be set aside.
- If a question of substantive fact (as distinguished from a decision of law) is submitted to the judge for trial, without the intervention of a jury, the judge's decision as to the facts is as binding upon the parties as a verdict and may be set aside under the same rules as apply to the vacating of the finding of a jury. Sunn v. Mercury Marine, 166 Ga. App. 567, 305 S.E.2d 6 (1983).
Extent to which default judgment was set aside was not detailed.
- In a wrongful death action, the contested default judgment was vacated and the case remanded to the trial court for the court to make explicit any basis for the court's decision relative to whether the defendants' motion to set aside should be granted as the order, while granting the defendants' motion to set aside, did not specify the extent to which such default judgment was set aside. Dockery v. Haedong Indus. Co., 355 Ga. App. 436, 844 S.E.2d 496 (2020).
Judge tries defense of lack of personal jurisdiction.
- Because a default judgment had already been entered, the defendant could raise a defense of lack of jurisdiction over the defendant's person by motion to set aside the judgment, and submit the judgment to the trial court for disposition, but because this defense was raised by a motion after judgment, the trial court sat as the trier of fact. Wolfe v. Rhodes, 166 Ga. App. 845, 305 S.E.2d 606 (1983).
Facsimile service on attorney not compliant.
- Custody modification order granting custody to a father was reversed because the father's motion to modify custody was served on the mother's counsel by facsimile and, as a result, did not satisfy the statutory requirements for service found in O.C.G.A. § 9-11-5(b) and constituted a nonamendable defect on the face of the record. Fiffee v. Jiggetts, 353 Ga. App. 730, 839 S.E.2d 224 (2020).
Inapplicable to set-aside petition in probate proceeding.
- Because the Civil Practice Act's (O.C.G.A. T. 9, Ch. 11) procedure for attacking a judgment through a set-aside motion was more restrictive than the Probate Code's procedure for attacking an order admitting a will to probate on the ground that another will should be admitted to probate, the constraints of the Civil Practice Act did not apply in the probate proceeding, and the probate court erred in denying the step-son's set-aside petition for failing to meet the requirements of the Civil Practice Act, rather than ruling on the merits of the petition. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).
Probate court erred in rejecting the step-son's set-aside petition on the basis that the court did not satisfy O.C.G.A. § 9-11-60(d) as that provision set out the narrow grounds on which a motion to set aside a judgment could be brought under the Civil Practice Act (O.C.G.A. T. 9, Ch. 11), but set-aside petitions in probate proceedings were special statutory proceedings, and the specific rules of practice and procedure for such petitions were set out at O.C.G.A. §§ 53-5-50 and53-5-51; thus, to the extent that those specific rules of practice and procedure conflicted with the Civil Practice Act, pursuant to O.C.G.A. § 9-11-81, the Civil Practice Act did not apply and the probate court's order ruling on the set-aside petition was reversed. In re Estate of Jones, 346 Ga. App. 877, 815 S.E.2d 599 (2018).
Motion to set aside not covered by O.C.G.A. § 9-11-52. - Motion to set aside a default judgment pursuant to subsection (d) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) does not come within the ambit of Ga. L. 1970, p. 170, § 1 (see now O.C.G.A. § 9-11-52), relating to findings of the court. Emery Enters., Inc. v. Automatic Fastners Div., 155 Ga. App. 24, 270 S.E.2d 261 (1980); Jones v. Christian, 165 Ga. App. 165, 300 S.E.2d 1 (1983).
Inapplicability of O.C.G.A.
§ 9-11-56(h). - Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56(h)), relating to appeals, is not applicable to motions to set aside and vacate judgments authorized by subsection (d) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60). Farr v. Farr, 120 Ga. App. 762, 172 S.E.2d 158 (1969).
Matter developed by evidence not within orbit of subsection (d).
- Subsection (d) of this section requires that a nonamendable defect appear upon the face of the pleadings or record, and if a matter asserted to be error, such as a defect in notice, does not appear upon the face of the record but is developed by the evidence, judgment may not be set aside under that section. Newman v. Greer, 131 Ga. App. 128, 205 S.E.2d 486 (1974).
Motion under subsection (d) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) will not be granted if matters upon which the motion is predicated must be developed by evidence. Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975); Gough v. Gough, 238 Ga. 695, 235 S.E.2d 9 (1977); Glenn v. Maddux, 149 Ga. App. 158, 253 S.E.2d 835 (1979); Emery Enters., Inc. v. Automatic Fastners Div., 155 Ga. App. 24, 270 S.E.2d 261 (1980).
Matter which is developed by the evidence rather than appearing upon the face of the record or pleadings does not fall within the orbit of subsection (d) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60). Prudential Timber & Farm Co. v. Collins, 155 Ga. App. 492, 271 S.E.2d 43 (1980); Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 307 S.E.2d 732 (1983).
Defendant's efforts, following a default judgment, to attack the underlying claim (i.e., the original entry of judgment) would have required the development of the issue by evidence and was not a proper subject for a motion to set aside. Clements v. Trust Co. Bank, 171 Ga. App. 600, 320 S.E.2d 576 (1984).
Proper vehicle to take exception to judgment.
- Because, regardless of how the appellant's motion was denominated, the basis of the motion was that the consent judgment was entered in violation of the settlement agreement, the proper vehicle through which to take exception to the judgment was a motion to set aside and not a motion for new trial. Accordingly, the appellant failed to follow the discretionary appeal procedures of O.C.G.A. § 5-6-35(b). Magnum Communications, Ltd. v. IBM, 206 Ga. App. 131, 424 S.E.2d 379 (1992).
Use of motion to introduce new evidence improper.
- Motion to reconsider and set aside judgment, used to bring additional affidavits before the court so as to gain a reversal based on "new evidence," is not proper. Glenn v. Maddux, 149 Ga. App. 158, 253 S.E.2d 835 (1979).
Failure to provide court with all the evidence.
- Trial court erred by setting aside the denial of a biological father's petition for legitimation because the voluntary acknowledgment of paternity preempted the denial as the father failed to make the trial court aware of the acknowledgment and could not subsequently use the document to set aside the trial court's final judgment. Allifi v. Raider, 323 Ga. App. 510, 746 S.E.2d 763 (2013).
Motion to set aside must be based upon a nonamendable defect appearing on the face of the record or pleadings. Southeast Ceramics, Inc. v. Ervin Co., 127 Ga. App. 346, 193 S.E.2d 262 (1972); Prudential Timber & Farm Co. v. Collins, 155 Ga. App. 492, 271 S.E.2d 43 (1980); Hawkins v. Walker, 158 Ga. App. 562, 281 S.E.2d 311 (1981).
Substance of subsections (a), (b), and (d) of O.C.G.A. § 9-11-60 is that a void judgment may be attacked by motion to set aside for a nonamendable defect that appears, not just on the face of the judgment, but also on the face of the record or pleadings. Lamas v. Baldwin, 128 Ga. App. 715, 197 S.E.2d 779 (1973).
If no nonamendable defect appears on the face of the record, a default judgment cannot be set aside by motion. Security Mgt. Co. v. Keasler, 131 Ga. App. 230, 205 S.E.2d 515 (1974).
Motion made pursuant to subsection (d) of O.C.G.A. § 9-11-60 must be predicated on some nonamendable defect that appears on the face of the record or pleadings. Archer v. Monroe, 165 Ga. App. 724, 302 S.E.2d 583 (1983).
Absence of a judge's or clerk's signature on an affidavit for garnishment did not constitute a nonamendable defect justifying the grant of a motion to set aside a judgment. Horizon Credit Corp. v. Lanier Bank & Trust Co., 220 Ga. App. 362, 469 S.E.2d 452 (1996).
Since the defendant established the presence of a nonamendable defect on the face of the record, the trial court erred in denying the motion to set aside a default judgment which was based on the defendant's failure to answer an amended complaint. Shields v. Gish, 280 Ga. 556, 629 S.E.2d 244 (2006).
Although a spouse alleged on appeal that a motion to set aside that portion of the divorce decree which dealt with the issue of child support, which incorporated the parties' settlement agreement, was properly granted because the decree failed to set forth a specific baseline dollar amount for child support, as required by O.C.G.A. § 19-5-12, the decree contained stated dollar amounts which could be considered baseline payments; hence, pursuant to O.C.G.A. § 19-6-15 as applicable at the time, the trial court properly found that the spouse was liable for paying child support for two children in the range of 23 to 28 percent of the spouse's gross income. Scott v. Scott, 282 Ga. 36, 644 S.E.2d 842 (2007).
Bail bondsman was not entitled to have the forfeiture of the bondsman's bond set aside under O.C.G.A. § 9-11-60(d)(3) based on the accused principal's entry into a pretrial diversion program because the program was not "court ordered" as required for release of the surety under O.C.G.A. § 17-6-31(d)(1)(C). AA-Prof'l Bail Bonding v. Deal, 332 Ga. App. 857, 775 S.E.2d 217 (2015).
Denial of motion which nonamendable defect.
- Motion to set aside and vacate a judgment that is not based on a nonamendable defect appearing in the record is properly denied. Farr v. Farr, 120 Ga. App. 762, 172 S.E.2d 158 (1969).
Meaning of "nonamendable defect".
- Absence of consideration as a defense is a matter to be developed by the evidence, and it is not a nonamendable defect within the meaning of subsection (d) of O.C.G.A. § 9-11-60. First Baptist Church v. King, 208 Ga. App. 250, 430 S.E.2d 635 (1993).
Because the information required in a Ga. Unif. Super. Ct. R. 15 certificate of default (date and type of service, lack of responsive pleading) could also be found in the record, the failure to file a Rule 15 certificate was not a nonamendable defect in the record sufficient to authorize setting aside a default judgment under O.C.G.A. § 9-11-60(d). Williams v. Contemporary Servs. Corp., 325 Ga. App. 299, 750 S.E.2d 460 (2013).
Claims based on decisional or judgmental error not cognizable.
- Inasmuch as the party seeking to set aside a judgment of dismissal directed the party's claims of mistake to decisional or judgmental error underlying the trial court's judgment of dismissal, such claims were not cognizable under O.C.G.A. § 9-11-60(d)(2). Brown v. Gadson, 288 Ga. App. 323, 654 S.E.2d 179 (2007), cert. denied, No. S08C0456, 2008 Ga. LEXIS 236 (Ga. 2008).
In a divorce action, the husband's motion to set aside a juvenile court's custody order for lack of personal or subject matter jurisdiction and for a nonamendable defect on the face of the record was not authorized since jurisdiction of the juvenile court was unquestioned and, because the record showed the mother had a claim to custody, there was no showing of a nonamendable defect. Barnes v. Williams, 265 Ga. 834, 462 S.E.2d 612 (1995).
When an attorney sued a former client's ex-spouse to enforce a lien on the former client's former marital residence, which was titled in the ex-spouse's name, the ex-spouse had no standing to seek to set aside the judgment on which the lien was based as O.C.G.A. § 9-11-60(d) did not authorize a non-party to bring a motion to set aside a judgment, and the ex-spouse did not allege that the judgment was void on the judgment's face, which could have provided standing under § 9-11-60(a). Northen v. Tobin, 262 Ga. App. 339, 585 S.E.2d 681 (2003).
Trial court did not abuse the court's discretion in granting a husband's motion to set aside a judgment, pursuant to O.C.G.A. § 9-11-60, after the court granted a divorce to the wife pursuant to O.C.G.A. § 19-5-5 and awarded her the parties' marital residence and all of the personal effects therein as the husband was not represented by counsel and thought that he would have to receive notice prior to the wife obtaining the divorce. The court noted that although he was served, the husband did not file responsive pleadings and accordingly, was not noticed for the final hearing which distributed the property, representing the husband's entire life savings, completely to the wife, and further, the motion to set aside the judgment was made during the same court term as the initial judgment was granted. Pope v. Pope, 277 Ga. 333, 588 S.E.2d 736 (2003).
Husband's application to vacate an arbitration award under O.C.G.A. § 9-9-13 should have been dismissed rather than denied since the trial court's divorce decree in which the court approved the arbitration award was final on the date that the court issued the decree even though the arbitration award had, in fact, not been issued on that date; thus, the husband should have filed an application for a discretionary appeal from the trial court's final judgment within 30 days of the entry of the judgment and decree under O.C.G.A. § 5-6-35(d) or filed a motion to set aside the judgment and decree under O.C.G.A. § 9-11-60. Since, pursuant to O.C.G.A. § 9-9-15 the order confirming the arbitration award became the judgment of the trial court on the date that the trial court issued the court's divorce decree, all matters in litigation in the action were final on that date, including those submitted for arbitration, and the later purported arbitration award was of no effect. Ciraldo v. Ciraldo, 280 Ga. 602, 631 S.E.2d 640 (2006).
Upon reading the rules within the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, in para materia with Ga. Unif. Super. Ct. R. 24.6(B), the trial court was authorized to grant a divorce well after 30 days from the time an answer would have been due; hence, the trial court did not err in denying a wife's motion to set the judgment aside. Hammack v. Hammack, 281 Ga. 202, 635 S.E.2d 752 (2006).
Trial court erred in granting a husband's motion to set aside an order awarding a wife sole legal and physical custody of the parties' children, eliminating the husband's right of visitation, and increasing the husband's child support obligations because the husband did not provide the trial court with an appropriate basis to set aside the court's final order pursuant to O.C.G.A. § 9-11-60(d)(2); to establish mistake, the husband could not rely on the mistake of trial counsel as if counsel were acting adversely to the husband, rather than as his representative before the trial court because trial counsel's failure to include a correct address for the husband on a motion to withdraw was an insufficient ground to set aside the case under O.C.G.A. § 9-11-60(d)(2). Edge v. Edge, 290 Ga. 551, 722 S.E.2d 749 (2012).
Trial court erred by denying an ex-husband's motion to set aside a divorce decree with the ex-wife because the marriage was void from the marriage's inception due to the ex-wife having a living spouse from an undissolved marriage at the time and there was no issue of the protection of a child to prevent the decree from being set aside. Wright v. Hall, 292 Ga. 457, 738 S.E.2d 594 (2013).
Trial court's orders finding an ex-husband in contempt for failing to pay his ex-wife child support and alimony and incarcerating him until he purged the contempt were affirmed because the evidence established he was willfully failing or refusing to pay as he was living a comfortable life, drew a significant salary per month, had cash accounts with thousands of dollars in them, and no evidence of debt or borrowing money was presented. Bernard v. Bernard, 347 Ga. App. 429, 819 S.E.2d 688 (2018).
Irregularities not on face of record.
- In a proper proceeding, courts of this state may exercise jurisdiction that obtained at common law to set aside judgments for irregularities not appearing on the face of the record; such a petition may be brought at law as well as in equity. Simpson v. Bradley, 189 Ga. 316, 5 S.E.2d 893 (1939), cert. denied, 310 U.S. 643, 60 S. Ct. 1105, 84 L. Ed. 1410 (1940) (decided under former Code 1933, §§ 37-219 and 110-710).
Despite the fact that a spouse might have been negligent for not attacking the divorce decree by direct appeal, when that spouse failed to show a non-amenable defect on the face of the record, the trial court erred in granting a O.C.G.A. § 9-11-60(d)(3) motion to set the decree aside as to the issue of child support. Scott v. Scott, 282 Ga. 36, 644 S.E.2d 842 (2007).
Defect on face of record required to set aside judgment after term of entry.
- Motion in arrest of judgment or motion to set aside can be sustained only upon such cause as is apparent upon the face of the record. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945) (decided under former Code 1933, § 110-702).
Motion to set aside a judgment, if there is no claim that the judgment was fraudulently procured, can be sustained only if the defects rendering the judgment invalid appear on the face of the record. Fields v. Arnall, 199 Ga. 491, 34 S.E.2d 692 (1945) (decided under former Code 1933, § 110-702).
Motion to set aside a judgment made after the term at which the judgment was rendered must be based on some defect appearing on the face of the record. Reid v. Anderson, 88 Ga. App. 298, 76 S.E.2d 541 (1953); Charles S. Martin Distrib. Co. v. Southern Furnace Co., 88 Ga. App. 339, 76 S.E.2d 662 (1953) (decided under former Code 1933, Ch. 7, T. 110).
Motion to set aside a judgment, not predicated upon some defect apparent upon the face of the record or pleadings, was without merit. Tobin v. Tobin, 212 Ga. 205, 91 S.E.2d 508 (1956) (decided under former Code 1933, § 110-702).
If the term of court has expired, judgment is res judicata and is no longer in the breast of the court, and the court has no authority to vacate or set aside such judgment except for defects appearing on the face of the record. Carolina Tree Serv., Inc. v. Cartledge, 96 Ga. App. 240, 99 S.E.2d 705 (1957) (decided under former Code 1933, § 110-702).
Judgment will not be set aside after the expiration of the term in which the judgment was rendered for defects not appearing on the face of the record that are amendable. Allen v. Allen, 218 Ga. 364, 127 S.E.2d 902 (1962) (decided under former Code 1933, § 110-702).
As a debtor did not file bankruptcy documents in a promissory note holder's action against the debtor, there was no error in the denial of the debtor's motion to set aside a default judgment taken against the debtor as the record was devoid of a nonamendable defect which appeared upon the face of the record or pleadings. Chugh Shopping Ctr., Inc. v. Ameris Bank, 323 Ga. App. 243, 746 S.E.2d 855 (2013).
Except when motion to set aside was continued to next term.
- Trial court cannot, after the term at which a judgment or order is entered, set aside, alter, amend, or revoke the court's final judgment or order except for defects appearing on the face of the record; the only exception is if the motion or petition to set aside or arrest the judgment was filed at the term at which the judgment or order was rendered and was regularly continued to a succeeding term. American Mut. Liab. Ins. Co. v. Satterfield, 88 Ga. App. 395, 76 S.E.2d 730 (1953) (decided under former Code 1933, Ch. 7, T. 110).
End of term of court necessitates motion.
- Since summary judgment was entered before the term of court ended and a motion was not filed until after that, a motion to set aside the judgment under subsection (d) of O.C.G.A. § 9-11-60 was required. First Baptist Church v. King, 208 Ga. App. 250, 430 S.E.2d 635 (1993).
Setting aside of judgment if no cause of actions exists.
- Motion in arrest of or to set aside a judgment may be interposed as provided by law if it appears from the face of the record or the pleadings that no cause of action exists against a defendant. Smith v. Franklin Printing Co., 54 Ga. App. 385, 187 S.E. 904 (1936) (decided under former Code 1933, Ch. 7, T. 110).
Because the adopted son identified no basis for voiding the award of a year's support to the decedent, his adopted mother, and the son's action to set aside the award was untimely under O.C.G.A. § 9-11-60(f), the award in favor of the biological mother (the decedent's daughter) was upheld. Harris v. Johnson, 257 Ga. App. 182, 570 S.E.2d 582 (2002).
Trial court erred in setting aside consent decree.
- Trial court erred in finding that a consent judgment was void due to impossibility of performance or lack of mutuality and in denying the sellers' motion for judgment instanter on the consent judgment because the purchasers accepted the risk that the purchasers would be unable to complete the road on time per the agreement and set up an alternative method of compliance, namely, the payment of money to the sellers. Kothari v. Tessfaye, 318 Ga. App. 289, 733 S.E.2d 815 (2012).
Defendant's failure to answer based on an allegation of mistake did not justify setting aside the default judgment because the alleged mistake was not "unmixed with negligence or fault" of the defendant. Lee v. Restaurant Mgt. Servs., 232 Ga. App. 902, 503 S.E.2d 59 (1998).
Gross neglect during discovery supported denial of motion to set aside default judgment.
- Because a lessee's conduct during the discovery stage of the proceedings below on the lessor's breach-of-lease complaint clearly demonstrated gross neglect, specifically, the lessee's failure to: (1) respond to a motion to compel and attend the hearing thereon; (2) communicate with counsel; and (3) attack the default judgment until eight months after the judment was entered, the trial court manifestly abused the court's discretion in granting the lessee's motion to set the default aside. Kairos Peachtree Assocs., LLC v. Papadopoulos, 288 Ga. App. 161, 653 S.E.2d 386 (2007).
If the pleadings are so defective that no legal judgment can be rendered, the judgment will be arrested or set aside; but a judgment will not be arrested or set aside for any defect in the pleading or record that is aided by the verdict or is amendable as a matter of form. Auld v. Schmelz, 199 Ga. 633, 34 S.E.2d 860 (1945) (decided under former Code 1933, Ch. 7, T. 110).
Meritorious reason necessary for setting aside of judgment.
- Although a motion to set aside a judgment is addressed to the sound discretion of the judge, the motion should not be granted unless some meritorious reason be given therefor, even though the motion is made during the term at which the judgment was rendered. Hurt Bldg., Inc. v. Atlanta Trust Co., 181 Ga. 274, 182 S.E. 187 (1935); Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373, 56 S.E.2d 165 (1949) (decided under former Code 1933, Ch. 7, T. 110). See also Hicks v. Hicks, 226 Ga. 798, 177 S.E.2d 690 (1970).
Trial court did not abuse the court's discretion in declining to set aside the judgment and open default because the defendant did not show that the defendant was entitled to a new trial as negligence in allowing the case to go into default was not a mistake to support relief under O.C.G.A. § 9-11-60(d), venue remained proper in the county under O.C.G.A. § 9-10-93, and any asserted procedural errors did not warrant the setting aside of the judgment. Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015).
Failure to appear not a meritorious reason.
- Failure of the defendant to appear and plead, in consequence of a misunderstanding between the defendant and defense counsel, does not afford a meritorious reason for granting a motion to set aside a judgment, even though made during the term, while the judgment was yet in the breast of the court. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373, 56 S.E.2d 165 (1949) (decided under former Code 1933, Ch. 7, T. 110).
Superior court did not abuse the court's discretion in denying a stepson's motion under O.C.G.A. § 9-11-60(d) to set aside a judgment entered in favor of an administrator based on the claim that the stepson's attorney had no notice of the trial date because the superior court placed the case on the trial calendar upon the stepson's request; therefore, pursuant to O.C.G.A. § 9-11-40(c)(2), the superior court was not required to provide the stepson with notice of the trial date, and the stepson's attorney had a duty to attend court and look after the attorney's and the stepson's interests. Bocker v. Crisp, 313 Ga. App. 585, 722 S.E.2d 186 (2012).
Pleadings must show that no claim existed.
- To set aside a judgment under subsection (d) of O.C.G.A. § 9-11-60, a movant must show that the motion is predicated upon some nonamendable defect that does appear upon the face of the record or pleadings, and that the pleadings affirmatively show that no claim in fact existed. Midland Guardian Co. v. Varnadore, 148 Ga. App. 742, 252 S.E.2d 685 (1979); Hyman v. Plant Imp. Co., 151 Ga. App. 553, 260 S.E.2d 531 (1979).
Unless motion is based on lack of jurisdiction.
- Unless a motion to set aside a judgment is based upon lack of jurisdiction over the person or subject matter, the motion must be predicated upon some nonamendable defect that appears upon the face of the record or pleadings. Gough v. Gough, 238 Ga. 695, 235 S.E.2d 9 (1977).
Regardless of whether lack of jurisdiction appears on face of record or pleadings.
- Under subsection (d) of O.C.G.A. § 9-11-60, as amended in 1974 by Ga. L. 1974, p. 1138, § 1, a motion to set aside a judgment may be based upon lack of jurisdiction over the person or subject matter, regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings. Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979); Hawkins v. Walker, 158 Ga. App. 562, 281 S.E.2d 311 (1981).
Lack of jurisdiction of the person usually arises from one of two defects: invalidity of service or faulty venue; either may or may not appear on the face of the record, but for purposes of a motion to set aside it does not matter. Cook v. Bright, 150 Ga. App. 696, 258 S.E.2d 326 (1979).
Service essential to personal jurisdiction.
- O.C.G.A. § 9-11-60 provides that a judgment is subject to being set aside at any time by a motion premised upon lack of jurisdiction over the person, and unless a party has waived lawful service of process, such service is essential to give a court jurisdiction over that party's person. Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979).
Misleading identification of intended defendant.
- Because a complaint actively misled as to the identity of the intended defendant, the action of an agent for service of process in returning the complaint was appropriate, and since there was no proper service upon any defendant, a motion to set aside should have been granted. Carrier Transicold Div. v. Southeast Appraisal Resource Assocs., 233 Ga. App. 176, 504 S.E.2d 25 (1998).
Effect of subsection (d) of O.C.G.A. § 9-11-60 is to prevent waiver of the defense of lack of jurisdiction under O.C.G.A. § 9-11-12(h)(1) by allowing the defense to be raised in a motion to set aside. Phillips v. Williams, 137 Ga. App. 578, 224 S.E.2d 515 (1976).
Under subsection (d) of O.C.G.A. § 9-11-60, a person may bring a motion to set aside a judgment void for lack of jurisdiction at any time, and O.C.G.A. § 9-11-12 could not be constitutionally applied to preclude a nonresident from bringing such a motion after a default judgment was entered against the nonresident. Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 459 S.E.2d 187 (1995); B & D Fabricators v. D.H. Blair Investment Banking Corp., 220 Ga. App. 373, 469 S.E.2d 683 (1996).
Rule of waiver by nonaction not abolished.
- The 1974 amendment by Ga. L. 1974, p. 1138, § 1, relating to jurisdictional defects, did not abolish the general rule of waiver by nonaction, which exists if the defendant is properly served and elects not to respond to process, despite notice therein of its requirements. Vanguard Diversified, Inc. v. Institutional Assocs., 141 Ga. App. 265, 233 S.E.2d 247 (1977).
One who, being properly served, wishes to rely on the defense of lack of venue, must bring the defense to the attention of the court at the proper time or the defense is waived; the 1974 amendment to subsection (d) by Ga. L. 1974, p. 1138, § 1, relating to jurisdictional defects, does not give a litigant who has been served and has knowledge of all the facts the right to sit idly by while a trial verdict and default judgment are entered against the litigant, and then set the whole procedure aside on a venue defense which should have been raised prior thereto. Allen v. Alston, 141 Ga. App. 572, 234 S.E.2d 152 (1977).
Diligence rule applies when an individual uses a motion to set aside, and precludes the movant from using a ground which the movant had known or could have discovered through reasonable diligence. Camp v. Fidelity Bankers Life Ins. Co., 129 Ga. App. 590, 200 S.E.2d 332 (1973); Rhodes v. Top Dog, Inc., 209 Ga. App. 777, 434 S.E.2d 578 (1993).
If an individual chooses a motion to set aside to obtain relief from a judgment, the principles applicable to a motion for new trial and to a complaint in equity would be applicable if the ground for the attack was one that was known or could have been discovered by reasonable diligence. Camp v. Fidelity Bankers Life Ins. Co., 129 Ga. App. 590, 200 S.E.2d 332 (1973).
Motion to set aside a judgment cannot be based on a ground that could have been discovered by the appellant through the exercise of reasonable diligence prior to entry of a judgment. Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982).
Defect on calendar appears on face of record.
- Trial calendar is a part of the record of a case, and a defect appearing on the calendar is a defect appearing on the "face of the record" within the meaning of subsection (d) of O.C.G.A. § 9-11-60. Brown v. Citizens & S. Nat'l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980).
Plaintiff was estopped by laches from seeking to set aside a dismissal on the equitable grounds set forth in paragraph (d)(2) of O.C.G.A. § 9-11-60 because the plaintiff's counsel was aware of the existence of the dismissal order within a few days after the order was entered but waited more than two years to move to set the order aside and offered no explanation for the delay. Lee v. Henson, 198 Ga. App. 701, 402 S.E.2d 548 (1991).
Motion to set aside may be barred by laches as if an action in equity. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
Lack of notice as nonamendable defect.
- Judgment or order based on a trial or hearing, entered against a party without notice of the trial or hearing, is subject to a motion to set aside when lack of notice appears on the face of the record. Brown v. Citizens & S. Nat'l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980).
Absence of an attorney's name on the trial calendar is a defect on the face of the record, and publication of this defective calendar did not constitute notice of trial; this lack of notice constituted a nonamendable defect on the face of the record, as contemplated by subsection (d) of O.C.G.A. § 9-11-60. Brown v. Citizens & S. Nat'l Bank, 245 Ga. 515, 265 S.E.2d 791 (1980).
If the defendant's counsel withdraws from the case and notifies the court, but the only notice of the trial date is sent to this former counsel, who makes no effort to inform the former client, a motion to set aside a subsequently entered default judgment should be granted. Georgia Hwy. Express, Inc. v. Whaley, 166 Ga. App. 662, 305 S.E.2d 411 (1983).
Lack of notice of a divorce hearing, unless notice is waived, constitutes a "nonamendable defect that does appear upon the face of the record or pleadings," thus authorizing a setting aside of the judgment. Coker v. Coker, 251 Ga. 542, 307 S.E.2d 921 (1983).
Failure of counsel or a party acting pro se to receive notice of trial is such a defect as will authorize the setting aside of the judgment. Beach's Constr. Co. v. Moss, 168 Ga. App. 462, 309 S.E.2d 382 (1983); TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 424 S.E.2d 71 (1992).
Failure of counsel or a party acting pro se to receive notice of a hearing constitutes such a defect as will authorize the setting aside of the judgment under paragraph (d)(3) of O.C.G.A. § 9-11-60. Housing Auth. v. Parks, 189 Ga. App. 97, 374 S.E.2d 842 (1988).
Trial court abused the court's discretion in denying an O.C.G.A. § 9-11-60(d) motion to set aside a default judgment entered when a builder failed to appear for trial in a breach of contract action; a nonamendable defect was shown on the face of the record, which established that the builder had never received actual notice of the trial as the notice was sent to the wrong address and was returned. Moore v. Davidson, 292 Ga. App. 57, 663 S.E.2d 766 (2008).
Trial court erred by denying the borrowers' motion under O.C.G.A. § 9-11-60(g) to set aside the order granting a bank summary judgment because while the trial court established that notice was sent the court failed to make any findings as to whether the attorneys for the borrowers had received notice of the order. C & R Fin. Lenders, LLC v. State Bank & Trust Co., 320 Ga. App. 660, 740 S.E.2d 371 (2013).
Authority to grant motion to set aside at subsequent term of court.
- Trial judge had authority at a subsequent term of court to grant a motion to set aside an order denying a new trial and reenter it based upon lack of timely notice because this was not a modification or revision affecting the substance or merits of a decree, which must be accomplished during the term in which the decree was entered. City of Monroe v. Jordan, 201 Ga. App. 332, 411 S.E.2d 511 (1991).
Lack-of-notice claim failed when defendant could not be reached.
- In a suit brought on a note, in which there was nothing in the complaint to indicate that the damages were unliquidated, in which the defendant was represented by counsel, who received notice of trial but was unsuccessful in informing the defendant of the trial date even though the defendant had the same mailing address at all times, and in which default judgment was entered after the defendant failed to appear, the trial court did not abuse the court's discretion in denying a motion to set aside on the grounds of lack of notice and unliquidated damages. Clements v. Trust Co. Bank, 171 Ga. App. 600, 320 S.E.2d 576 (1984).
Defendant's failure to attend not justification for setting aside judgment.
- Because the trial court found that, according to the defendant's own personal recollection, the defendant had been telephoned at 9:45 A.M. on April 6, 1982, and told to appear at 10:45, the defendant's answer was stricken and default judgment was entered at 10:55 A.M., the defendant's counsel appeared in the judge's chambers at 11:09 A.M., the trial court considered all circumstances of the case, and it cannot be said that rendition of the default judgment was unmixed with negligence on the part of the defendant in failing to appear given notice, there was no abuse of discretion by the trial court in denying the defendant's motion to set aside the default judgment. Archer v. Monroe, 165 Ga. App. 724, 302 S.E.2d 583 (1983).
Refusal to set aside the judgment on the ground of mistake or accident was not error because the trial court specifically found that the failure of the defendant or defendant's counsel to appear at the call of the case for trial was due "solely to the negligence of the defendant and defendant's legal counsel, unmixed with any acts of the court, the court administrator, the plaintiff's legal counsel, or any other person or entity." Aycock v. Hughes, 189 Ga. App. 838, 377 S.E.2d 689, cert. denied, 189 Ga. App. 911, 377 S.E.2d 689 (1989).
Denial of motion to set aside a default judgment against a corporation was not an abuse of discretion as the corporation's counsel admitted that the counsel failed to appear for trial because the counsel did not read the legal newspaper in which the trial calendar was published; the corporation offered no legal excuse for the corporation's failure to appear at the trial calendar. Migmar, Inc. v. Williams, 281 Ga. App. 870, 637 S.E.2d 471 (2006).
Judgment's violation of statute not grounds for motion.
- Motion to set aside is not the proper remedy if a party attacks a judgment as a violation of a statute, e.g., O.C.G.A. § 19-6-27, not because of some nonamendable defect on the face of the record or pleadings or lack of personal or subject matter jurisdiction. Page v. Page, 255 Ga. 145, 335 S.E.2d 865 (1985).
Absent confidential or fiduciary relationship between parties.
- As a general rule, equity will grant no relief to one against whom an unfavorable judgment has been rendered, even in consequence of fraud, when one could have prevented the return of such judgment by the exercise of proper diligence; but this rule is not applicable if there is a confidential or fiduciary relationship between the parties, in which case the law requires the utmost good faith and does not require the parties to anticipate or watch for fraud. Lewis v. Lewis, 228 Ga. 703, 187 S.E.2d 872 (1972).
If the relationship between the parties is that of business people, and although in the majority of business dealings the parties have trust and confidence in each other's integrity, there is no confidential relationship between the individuals. Parson-Nicholson, Inc. v. Dalton Carpet Finishing Co., 161 Ga. App. 595, 289 S.E.2d 25 (1982).
Affidavit of illegality insufficient.
- Defendant cannot use an affidavit of illegality to attempt to reach any alleged defects in a default judgment; this can be done only by the means set out in subsection (b) of O.C.G.A. § 9-11-60. Ryle v. Gold Kist, Inc., 172 Ga. App. 398, 323 S.E.2d 269 (1984).
Except if notice requirement waivable.
- Because the notice requirement is waivable, inadequate notice is not a nonamendable defect appearing on the face of the record, and cannot be the basis for setting aside a judgment. City of Calhoun v. Hamrick, 243 Ga. 716, 256 S.E.2d 599 (1979).
Failure to verify a pleading is an amendable defect and is no basis for setting aside a judgment. Dunn v. Lockheed-Georgia Co., 146 Ga. App. 750, 247 S.E.2d 601 (1978).
Relief under paragraph (d)(2) of O.C.G.A. § 9-11-60 may only be granted if the grounds are unmixed with the negligence or fault of the movant. Northeast Atlanta Sur. Co. v. State, 197 Ga. App. 399, 398 S.E.2d 435 (1990).
Mistake means misapprehension of fact.
- Claim of mistake refers to the misapprehension of a past or present fact. Northeast Atlanta Sur. Co. v. State, 197 Ga. App. 399, 398 S.E.2d 435 (1990).
Condemnation judgment could not be set aside on the basis of mistake of fact, because the mistake was due to the negligence or fault arising from a surveying error by the county's surveyor. Gatefield Corp. v. Gwinnett County, 234 Ga. App. 621, 507 S.E.2d 164 (1998).
Motion to set aside a voluntary dismissal with prejudice on the ground of mistake was properly denied because the mistake was the result of the plaintiffs' own negligence or fault. Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 504 S.E.2d 710 (1998).
Misnomer is amendable if it does not result in substitution or addition of another party. Carroll v. Equico Lessors, 141 Ga. App. 279, 233 S.E.2d 255 (1977).
Misnomer in complaint.
- Description of the defendant corporation in the complaint as "U.S. Shelter Corporation of Delaware" instead of "U.S. Shelter Corporation" was a mere misnomer and not a nonamendable defect that would warrant setting aside a default judgment against the corporation. Miller v. United States Shelter Corp., 179 Ga. App. 469, 347 S.E.2d 251 (1986).
Discrepancy in the defendant's name between the exhibits (inaccurate) and the pleadings (accurate) does not afford a basis for setting aside the judgment if the pleadings and record do not affirmatively show that no claim in fact existed against the defendant or that the plaintiff sued the wrong party. Pittard Mach. Co. v. Eisele Corp., 166 Ga. App. 324, 304 S.E.2d 129 (1983).
Motion to set aside the judgment mistakenly docketed as a new and separate action that fulfilled all the requirements of a motion to set aside under paragraph (d)(2) of O.C.G.A. § 9-11-60 would be so construed. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).
Remand necessitated when trial court only considered one asserted ground of relief.
- As a debtor's motion to set aside a default judgment taken against the debtor by the promissory note holder was only considered by the trial court on the ground of a nonamendable defect, a remand was necessitated in order for the trial court to consider the motion under the other ground asserted by the debtor. Chugh Shopping Ctr., Inc. v. Ameris Bank, 323 Ga. App. 243, 746 S.E.2d 855 (2013).
Alleged fraud of the plaintiff's attorney was not such a fraud as would authorize setting aside a dismissal under paragraph (d)(2) of O.C.G.A. § 9-11-60 because the fraud that will justify setting aside a judgment is that of the other side of the suit. Moore v. Barfield, 189 Ga. App. 348, 375 S.E.2d 623, cert. denied, 189 Ga. App. 913, 374 S.E.2d 771 (1988).
Motion for reconsideration distinguished from motion to set aside.
- Nonstatutory motion to reinstate an action dismissed as a sanction for failure to comply with the trial court's order to timely answer interrogatories is the equivalent of a motion for reconsideration and cannot be considered as a motion to set aside as it is not based upon a nonamendable defect that appears upon the face of the record. Daniels v. McRae, 180 Ga. App. 732, 350 S.E.2d 317 (1986).
Court must decide issue of sufficiency of process.
- Court could not use the doctrine of laches to deny a motion to set aside a judgment based on a claim that the court lacked personal jurisdiction due to a failure of process without first deciding the issue of the sufficiency of the process. Power v. Mobley, 170 Ga. App. 167, 316 S.E.2d 580 (1984).
Issue of usury not a nonamendable defect.
- Contention that late fee charges awarded by a court were a device to cover up usury raises a question of fact for jury resolution, and such an issue cannot be said to be a nonamendable defect that is not cured by judgment. Hyman v. Plant Imp. Co., 151 Ga. App. 553, 260 S.E.2d 531 (1979).
Bank's motion to set aside default judgment against borrower.
- Grant of a bank's motion to set aside a default judgment against a borrower was proper since a typographical error as to the amount sought in the demand for judgment was in the pleading rather than the judgment, and this defect was apparently intentionally waived by the borrower so as to serve in the borrower's favor in an attempt to take advantage of the limitation imposed by O.C.G.A. § 9-11-54(c)(1) on damages that can be awarded by default judgment. Betts v. First Ga. Bank, 177 Ga. App. 359, 339 S.E.2d 616 (1985).
Affidavit containing unnecessary hearsay is not a nonamendable defect within the contemplation of subsection (d) of O.C.G.A. § 9-11-60. Henry v. Polar Rock Dev. Corp., 143 Ga. App. 189, 237 S.E.2d 667 (1977).
Failure to incorporate findings and conclusions amendable.
- Failure of the trial court to incorporate findings of fact and conclusions of law in an order modifying a divorce decree was an amendable defect appearing on the face of the record, and thus not a defect that would warrant setting aside the judgment. Kennedy v. Brown, 239 Ga. 286, 236 S.E.2d 632 (1977).
Since the failure to include findings of fact and conclusions of law in the order in a proceeding under the "Uniform Reciprocal Enforcement of Support Act", O.C.G.A. Art. 2, Ch. 11, T. 19, was an amendable defect appearing on the face of the record, it was not subject to a motion to set aside, and the trial court did not err in denying the defendant's motion to set aside judgment. Powell v. State, 166 Ga. App. 780, 305 S.E.2d 646 (1983).
Motion must be predicated on nonamendable defect or lack of jurisdiction.
- Because the defendant's "Motion to Vacate and Set Aside Judgment" was not predicated upon a nonamendable defect or a lack of jurisdiction, but was nothing more than a request for a reconsideration of the trial court's summary judgment award, the motion did not extend the time for the filing of a notice of appeal from the order granting the plaintiff's motion for summary judgment. Miller v. Bank of S., 177 Ga. App. 42, 338 S.E.2d 436 (1985), overruled on other grounds, MMT Enters., Inc. v. Cullars, 218 Ga. App. 559, 462 S.E.2d 771 (1995).
Judgments will not be set aside merely because the judgments may be contrary to principles of law applicable to the case. Shepherd v. Metropolitan Property & Liab. Ins. Co., 163 Ga. App. 650, 294 S.E.2d 638 (1982).
Court erred in dismissing complaint for failure to state claim.
- While the trial court properly analyzed the motion under O.C.G.A. § 9-11-60, the court erred in dismissing the plaintiffs' challenge to the consent judgment under O.C.G.A. § 9-12-17, which permits creditors or bona fide purchasers to attack a judgment for fraud or collusion, whenever and wherever it interferes with their rights, either at law or in equity, as sufficient allegations were set forth in the complaint to state a claim and discovery was necessary. Lyle v. Fulcrum Loan Holdings, 354 Ga. App. 742, 841 S.E.2d 182 (2020).
Absence of the attorney's name on a trial calendar is a defect on the face of the record, which constitutes a nonamendable defect on the face of the record as contemplated by subsection (d) of O.C.G.A. § 9-11-60. Scott v. W.S. Badcock Corp., 161 Ga. App. 826, 289 S.E.2d 769 (1982).
Considerations of fraud applicable.
- Considerations of fraud applicable to equitable complaints to set aside under subsection (e) of O.C.G.A. § 9-11-60 also are applicable to timely motions for new trial and motions to set aside. Jackson v. Jackson, 254 Ga. 280, 328 S.E.2d 733 (1985).
Fraud perpetrated by a stranger could not be used as the basis for setting aside a judgment in favor of the defendant who was not linked to the fraud. Shilliday v. Dunaway, 220 Ga. App. 406, 469 S.E.2d 485 (1996).
No fraud in the inducement.
- Dismissal of the plaintiff's complaint extinguished an attorney's lien and there was no authority to set aside the dismissal based on fraud in the inducement. Villani v. Edwards, 251 Ga. App. 293, 554 S.E.2d 184 (2001).
Setting aside of judgment granting punitive damages when fraud not alleged.
- Motion to set aside should have been granted insofar as the motion related to a punitive damage award because the complaint alleging breach of agreement to procure automobile insurance contained no allegation of fraud upon which an award of punitive damages could have been based. Covington v. Saxon, 163 Ga. App. 646, 295 S.E.2d 105 (1982).
Including life insurance provisions in divorce decree.
- Even if the trial judge makes, in effect, a mistake of law by including life insurance provisions in a divorce decree, this does not constitute a ground for setting aside the decree. Coker v. Coker, 251 Ga. 542, 307 S.E.2d 921 (1983).
Contention that denial of a motion was "contrary to principles of justice and equity" sets forth no ground for reversal. Norman Serv. Indus., Inc. v. Lusty, 168 Ga. App. 164, 308 S.E.2d 411 (1983).
Motion for interest, filed after expiration of the term during which a judgment had been entered, provided no vehicle for the court to add interest to the judgment already entered because there had been no motion to set aside the judgment. Moore v. Thompson, 187 Ga. App. 672, 371 S.E.2d 111 (1988).
Paternity action should be separated.
- Although a petition for determination of paternity must be brought where the child resides when the father lives outside of the state, the superior court should not have dismissed an entire motion/petition that included a motion to set aside the judgment for want of jurisdiction simply because one aspect of the case should have been heard elsewhere; the superior court should have transferred the paternity portion of the case, not dismissed it. Suggs v. Suggs, 204 Ga. App. 72, 418 S.E.2d 427 (1992).
Failure to disprove agent's authority.
- Defendant's failure to present any evidence regarding the lack of authority of the defendant's agent to receive service on behalf of a partnership warranted the trial court's denial of the defendant's motion to set aside the default judgment on that basis. Northgate Village Apts. v. Smith, 207 Ga. App. 479, 428 S.E.2d 381 (1993).
Validation judgment not subject to set aside.
- Constitutional mandate that validation proceedings are conclusive does not allow these judgments to be set aside for fraud, accident, or mistake. AMBAC Indem. Corp. v. Akridge, 262 Ga. 773, 425 S.E.2d 637, cert. denied, 510 U.S. 817, 114 S. Ct. 69, 126 L. Ed. 2d 38 (1993).
Attack on a prior judgment based on the competency of the defendant is not a nonamendable defect that appears upon the face of the record or pleadings. Sellers v. Bell, 151 Ga. App. 440, 260 S.E.2d 538 (1979).
Because attorney's fees were improperly included in the judgment, that part could be set aside or arrested. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924) (decided under former Civil Code 1910, § 5957).
Failure to name the holder of a note in a notice of intention to include attorney's fees, as required by law, was not an amendable defect, and that portion of the judgment was absolutely void and rendered the judgment open to attack. Carey v. Wyatt, 17 Ga. App. 517, 87 S.E. 770 (1916) (decided under former Civil Code 1910, § 5957).
Failure to pay costs of previous action.
- Contention that judgment for total divorce should be set aside because the plaintiff failed to pay court costs of a previous action came too late when made for the first time in a petition to set aside. Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177 (1944) (decided under former Code 1933, Ch. 7, T. 110).
Objection to a petition on the ground of misjoinder of parties affords no ground to arrest the judgment. Love v. National Liberty Ins. Co., 157 Ga. 259, 121 S.E. 648 (1924) (decided under former Civil Code 1910, § 5957).
Failure to notify court of renewal status of case not nonamendable defect.
- Failure of the plaintiffs to notify the trial court of the renewal status of plaintiffs' action pursuant to Superior Court Rule 4.8 was not a nonamendable defect appearing on the face of the record as required by paragraph (d)(3) of O.C.G.A. § 9-11-60 and did not warrant setting aside the judgment for the plaintiffs. Hardeman v. Roberts, 214 Ga. App. 484, 448 S.E.2d 254 (1994).
Rescission of judicial sale.
- After a judicial sale has been confirmed, the court has no discretion to rescind the sale, except upon some special ground such as fraud, accident, or mistake that has worked an injustice, and which was unknown to the complainant at the time of confirmation. Hurt Bldg., Inc. v. Atlanta Trust Co., 181 Ga. 274, 182 S.E. 187 (1935) (decided under former Code 1933, § 110-710).
Motion to set aside a consent judgment was subject to dismissal because the plaintiffs failed to set forth any reason why the plaintiffs could not have ascertained grounds of the plaintiffs' complaint by proper diligence prior to entry of judgment and failed to show any fraud by the defendant in procuring the plaintiff's consent to the decree as rendered. Raines v. Lane, 198 Ga. 217, 31 S.E.2d 403 (1944) (decided under former Code 1933, § 110-710).
Binding effect of consent judgment.
- In the absence of fraud, accident, or mistake, a client is bound by a consent judgment entered into by counsel acting within the general scope of counsel's employment, and because neither the allegations nor proof were sufficient to bring the case from operation of this rule, the movant failed to show cause to set aside the consent judgment complained of. Midtown Chains Hotel Co. v. Merriman, 204 Ga. 71, 48 S.E.2d 831 (1948) (decided under former Code 1933, § 110-710).
Alleged agreement to dismiss not ground for setting aside judgment after defendant appeared and defended.
- Alleged agreement by the defendant with the plaintiff's attorney, made before judgment, that the suit would be dismissed, is no ground for setting aside the judgment or arresting execution if the defendant appeared at trial and defended against the action. Felker v. Johnson, 189 Ga. 797, 7 S.E.2d 668 (1940) (decided under former Code 1933, Ch. 7, T. 110).
Severe illness as proper ground for setting aside judgment.
- Severe illness of a party, preventing the party from attending trial, will generally be treated as casualty or misfortune constituting proper ground for vacating or setting aside judgment rendered against the party. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936) (decided under former Code 1933, § 110-701).
Erroneous rulings on pleadings are not proper grounds for motions to set aside judgments, nor proper grounds of a motion for new trial. Hambrick v. Nova, 112 Ga. App. 258, 144 S.E.2d 922 (1965) (decided under former Code 1933, Ch. 7, T. 110).
Motion to set aside portions of a decree that were alleged to be void, filed during the term at which the verdict and decree were rendered, because the nonamendable defects appeared on the face of the record, was the proper and authorized method to attach such parts of the decree. Summers v. Summers, 212 Ga. 614, 94 S.E.2d 725 (1956) (decided under former Code 1933, Ch. 7, T. 110).
Motion to set aside is not a proper vehicle to belatedly attack the sufficiency of a complaint, unless the complaint affirmatively shows the utter lack of a claim. Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974); Smith v. Security Mtg. Investors, 139 Ga. App. 635, 229 S.E.2d 115 (1976); Fudge v. Weissinger, 201 Ga. App. 409, 411 S.E.2d 62, cert. denied, 201 Ga. App. 903, 411 S.E.2d 62 (1991).
Default judgment rendered in an action on account was subject to a motion to set aside under subsection (d) of O.C.G.A. § 9-11-60 at the instance of an individual defendant sued jointly with a corporate defendant because the sworn itemized statement of account attached to the complaint affirmatively showed that the items and services were sold and delivered to the corporate defendant only, and that no claim in fact existed against the individual defendant from whom recovery was sought for the indebtedness of the corporation. Gilham v. Stamm & Co., 117 Ga. App. 846, 162 S.E.2d 248 (1968).
Garnishee entitled to hearing.
- In a case in which a garnishee, who paid a default judgment rendered against the garnishee but had witnesses who would testify that such payment was under duress, brought a motion to set aside such judgment for lack of jurisdiction due to failure of service, denial of the motion to set aside on the basis that payment had rendered the issue moot, without affording the garnishee an evidentiary hearing on the issue of duress, was improper. Homemakers, Inc. v. GAC Fin. Corp., 135 Ga. App. 242, 217 S.E.2d 475 (1975).
Lack of jurisdiction of the person when garnishment summons defective.
- Trial court erred in denying an employer's motion to set aside a default judgment under O.C.G.A. § 9-11-60(d)(1) because the court was without jurisdiction of the employer's person since the garnishment summons a bank caused to be served against the employer was defective; the summons did not substantially comply with the requirement of O.C.G.A. § 18-4-113(a) that the summons be directed to the garnishee because the summons was directed to a corporation that was legally separate and distinct from the employer's paint and body shop. Lewis v. Capital Bank, 311 Ga. App. 795, 717 S.E.2d 481 (2011).
Garnishment proceedings.
- Because a default judgment can be entered pursuant to O.C.G.A. § 18-4-115(a) only when the garnishee fails to timely file an answer, and by the plain terms of O.C.G.A. § 18-4-113(a)(1), the time in which an answer must be filed is triggered by the service of a summons of continuing garnishment, a default judgment is entered as provided in § 18-4-115(a) only after the garnishee has been served with proper process or has waived service of process, and § 18-4-115(b) provides relief, therefore, only when process has been served or waived; when a court enters a default judgment in a continuing garnishment proceeding in which the garnishee has not been served with a summons of continuing garnishment and the court has not obtained jurisdiction of the person of the garnishee, the default judgment is not one entered as provided in § 18-4-115(a), and subsection (b) of § 18-4-115 affords no relief, and in such a case, the garnishee is entitled to bring a motion to set aside the default judgment under O.C.G.A. § 9-11-60(d)(1). Lewis v. Capital Bank, 311 Ga. App. 795, 717 S.E.2d 481 (2011).
Motion to set aside a judgment allegedly void on the judgment's face does not require a brief of the evidence, since the questions presented by such motion do not require consideration of such evidence. Siefferman v. Kirkpatrick, 121 Ga. App. 161, 173 S.E.2d 262 (1970).
When a default judgment is set aside, the case returns to its prior posture, and the defendant must file responsive pleadings to avoid defaulting a second time; and this is in no way changed when a default judgment is set aside, not under the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), but through exercise of the trial court's discretion, as derived from the court's inherent powers. Bank of Cumming v. Moseley, 243 Ga. 858, 257 S.E.2d 278 (1979).
Judgment of dismissal for failure to prosecute.
- In a case in which a personal injury suit was dismissed without prejudice when neither party appeared for a peremptory calendar call, the trial court failed to notify the parties of the dismissal, and the parties did not learn the case had been dismissed until nine months later, it was proper to grant the plaintiff's motion to set aside the judgment and reenter a new order dismissing the case, thereby enabling the plaintiff to refile the action within six months. Morgan v. Starks, 214 Ga. App. 265, 447 S.E.2d 651 (1994).
Motion to set aside proper when protective order overbroad.
- In granting a neighbor a three-year protective order against the defendant under O.C.G.A. §§ 16-5-90 and16-5-94, the trial court exceeded the court's authority in banning the defendant from the defendant's residence for three years because this would prevent the defendant from going to the defendant's home even when the neighbor was not at the neighbor's home; the stalking statute protected people, not places. The trial court should have granted the defendant's motion to set aside the order in part under O.C.G.A. § 9-11-60(d)(3). Bruno v. Light, 344 Ga. App. 799, 811 S.E.2d 500 (2018).
Standing to bring motion to set aside.
- Only the person against whom a judgment is rendered has standing to bring a motion to set aside the default judgment for nonamendable defects in the record and pleadings under subsection (d) of this section. Peek v. Southern Guar. Ins. Co., 142 Ga. App. 671, 236 S.E.2d 767 (1977), rev'd on other grounds, 240 Ga. 498, 241 S.E.2d 210 (1978).
Restrictions on motions to set aside not applicable to void judgments.
- If a judgment is void, restrictions on the use of motions to set aside set out in subsection (d) of this section cannot apply. Holloway v. Frey, 130 Ga. App. 224, 202 S.E.2d 845 (1973).
Grant of motion to set aside not a final judgment.
- Grant of a motion to set aside a judgment, like the grant of a motion for new trial, leaves the case still pending, and thus is not a final judgment. Mayson v. Malone, 122 Ga. App. 814, 178 S.E.2d 806 (1970); Hooper v. Taylor, 230 Ga. App. 128, 495 S.E.2d 594 (1998).
Denial of motion is final and appealable.
- Denial of a motion authorized by Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) to set aside and vacate a judgment is final and appealable under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34). Farr v. Farr, 120 Ga. App. 762, 172 S.E.2d 158 (1969).
Appeal as a matter of right.
- Denial of a motion to set aside is appealable as a matter of right. Dudley v. Monsour, 155 Ga. App. 269, 270 S.E.2d 686 (1980).
Appealability of refusal to set aside judgment.
- Refusal to arrest a judgment or to vacate a judgment and set a judgment aside is such a final judgment as may be excepted to in a direct bill of exceptions (see now O.C.G.A. §§ 5-6-49 and5-6-50). Jewell v. Jewell, 209 Ga. 678, 75 S.E.2d 3 (1953) (decided under former Code 1933, § 110-703).
Appeal from denial of motion.
- Denial of the plaintiff's motion to set aside a judgment pursuant to O.C.G.A. § 9-11-60 is expressly a matter of discretionary appeal under O.C.G.A. § 5-6-35(a)(8), and a different result does not occur merely because the plaintiff's motion also sought a new trial. Parker v. Bellamy-Lunda-Dawson, 190 Ga. App. 257, 378 S.E.2d 502 (1989).
Although the Court of Appeals had jurisdiction to consider the grant of the appellee's O.C.G.A. § 9-11-60(g) motion to correct a clerical mistake in a default judgment, the court had no jurisdiction to address the denial of the appellants' motion to set aside the default judgment because an application must be filed to appeal from an order denying a motion to set aside a judgment. Brooks v. Federal Land Bank, 193 Ga. App. 591, 388 S.E.2d 704, cert. denied, 193 Ga. App. 909, 388 S.E.2d 704 (1989).
Court lacked jurisdiction to hear the caveator's appeal of the probate court's order denying the caveator's motion to set aside the court's previous orders granting letters of dismission to the executrix because the caveator's direct appeal was untimely and the caveator's application to the appellate court for a discretionary appeal also was untimely. Thierman v. Thierman, 234 Ga. App. 716, 507 S.E.2d 489 (1998).
In a case in which the appellant sought review of the denial of a motion to vacate and set aside a consent order, the appellate court lacked jurisdiction over the appeal; the appellant did not file a timely application for a discretionary appeal under O.C.G.A. § 5-6-35, as was required under § 5-6-35(a)(8) for orders under O.C.G.A. § 9-11-60(d) denying a motion to set aside a judgment. Rogers v. Estate of Harris, 276 Ga. App. 898, 625 S.E.2d 65 (2005).
Denial of a motion to set aside a default judgment against a corporation was affirmed as: (1) there was no pending motion in the record when the default judgment was entered since the corporation's summary judgment motion had been denied as premature; (2) a colloquy between the trial court and the corporation's counsel did not create a pending motion; and (3) the fact that the corporation was entitled to resubmit the corporation's summary judgment motion did not mean that a motion was pending. Migmar, Inc. v. Williams, 281 Ga. App. 870, 637 S.E.2d 471 (2006).
Denial of a motion to set aside a default judgment against a corporation was not an abuse of discretion as the trial was properly noticed by publication of the trial calendar in the county's legal gazette; publication of a court calendar in the county's legal organ of record was sufficient notice to the parties to appear. Migmar, Inc. v. Williams, 281 Ga. App. 870, 637 S.E.2d 471 (2006).
Because the defendant effectively waived defenses of a lack of both personal jurisdiction and venue in failing to appear at the trial, the trial court did not abuse the court's discretion in striking the defendant's answer and denying a motion to set aside the default judgment entered. Jacques v. Murray, 290 Ga. App. 334, 659 S.E.2d 643 (2008).
Trial court erred in refusing to set aside a default judgment pursuant to O.C.G.A. § 9-11-60(d) because the affidavit filed by the registered agent for the party against whom a default judgment was taken, stating that the agent was never served, did not constitute an answer or appearance and the party against whom default was taken raised the issue via a motion to set aside the judgment. Stokes & Clinton, P.C. v. Noble Sys. Corp., 318 Ga. App. 497, 734 S.E.2d 253 (2012).
Parent's appeal from the imposition of attorney's fees against the parent in a contempt finding was dismissed as untimely under O.C.G.A. § 5-6-38(a); the parent's motion for new trial was improper and did not toll the time for filing the appeal. Even if the motion were construed as a motion to set aside under O.C.G.A. § 9-11-60, the denial was not directly appealable, but required the filing of an application for discretionary appeal under O.C.G.A. § 5-6-35(b). Parker v. Robinson, 337 Ga. App. 362, 787 S.E.2d 317 (2016).
Denial of a "discretionary" motion to set aside is never appealable in its own right, nor does the filing of such a motion extend the time for filing an appeal. Stone v. Dawkins, 192 Ga. App. 126, 384 S.E.2d 225 (1989).
Discretionary appeal.
- Court of Appeals lacks jurisdiction to consider a direct appeal from a trial court's order denying a motion to set aside a default judgment because the court previously held that a discretionary appeal was the only appellate remedy available and the application for a discretionary appeal was denied. Lewis v. Sun Mgt., Inc., 187 Ga. App. 591, 370 S.E.2d 840 (1988).
Action to open intestate estate.
- Putative heir's action seeking an order opening the putative heir's father's intestate estate was subject to the three-year statute of limitations contained in O.C.G.A. § 9-11-60(f), and the appellate court held that the action was untimely because the action was filed more than three years after the probate court issued an order discharging the decedent's widow as administrator, and the heir did not provide evidence sufficient to show that the statute of limitations should be tolled, pursuant to O.C.G.A. § 9-3-96, because the widow fraudulently kept the heir from learning that she filed a petition seeking letters allowing her to administer her husband's estate. Moore v. Mack, 266 Ga. App. 847, 598 S.E.2d 525 (2004).
Partition action.
- Trial court did not err when the court denied a mother's motion to set aside a judgment of partition because the motion to set aside was filed more than three years after the entry of the judgment of partition, and that judgment was made by a court with jurisdiction; the trial court had subject-matter jurisdiction to enter the partitioning judgment since the land sought to be partitioned was partially located in the county of the trial court, and that court had personal jurisdiction of the mother since, under the partitioning statutes, the notice of intent to seek partitioning was the only process necessary to bring a defendant into court to meet the application for partitioning. Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).
Voluntary dismissal adjudication on the merits.
- Drug store's voluntary dismissal of the store's inverse condemnation suit with prejudice barred the store's damages claim against a state agency in a direct condemnation action based on res judicata and the purported mistake of dismissing with prejudice was not subject to correction under O.C.G.A. § 9-11-60. DOT v. Revco Disc. Drug Ctrs., Inc., 322 Ga. App. 873, 746 S.E.2d 631 (2013).
Complaint in Equity
1. In General
Editor's note.- The procedure for using a complaint in equity to set aside a judgment was deleted and prohibited by the 1986 amendment to this Code section.
Jurisdiction to relieve against verdicts inequitably obtained exists as certainly as it does against awards, judgments, and decrees obtained by imposition. Gentle v. Georgia Power Co., 179 Ga. 853, 177 S.E. 690 (1934) (decided under former Civil Code 1910, § 5965).
Principles of former law embodied by subsection (e).
- Subsection (e) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) provides for a complaint in equity to set aside a judgment for fraud, and inculcates the same principles of law found in former Code 1933, §§ 37-219 and 110-710. Lewis v. Lewis, 124 Ga. App. 579, 184 S.E.2d 672 (1971).
Subsection (e) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) is identical with the provisions of former Code 1933, §§ 37-219 and 110-710, and cases decided under the former Code sections are applicable in principle to cases arising under this subsection. Erwin v. Marx, 228 Ga. 495, 186 S.E.2d 735 (1972).
Subsection (e) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) embodies the principles of former Code 1933, §§ 37-219 and 110-710, and cases under those sections apply under subsection (e). Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Purpose of subsection (e) of this section is to give equitable relief to those parties who are victims of fraud, accident, or mistake in the rendering of a judgment. Jordan v. Caldwell, 231 Ga. 226, 200 S.E.2d 868 (1973), overruled on other grounds, Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015).
Grounds for relief in subsection (e) not all-inclusive.
- Although subsection (e) of this section only mentions that a complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the complainant, equity has the power to afford relief on more grounds than those mentioned. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) gave a remedy under subsection (e) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) to third parties who attack a judgment as void for any cause because lack of jurisdiction or power in a court entering judgment always avoids the judgment, especially as the judgment relates to and affects the rights of other parties; such action is a mere usurpation of power and may be declared void collaterally without any direct proceedings to revise the judgment. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16) allowed a party, through complaint in equity under subsection (e) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60), to attack a judgment void for any cause. Bonneau v. Ohme, 244 Ga. 184, 259 S.E.2d 631 (1979).
Principles of former Code 1933, § 110-709 (see now O.C.G.A. § 9-12-16), provided that the judgment of a court having no jurisdiction over the person or subject matter or that was void for any other cause was a nullity and may be so held in any court when material, applied to subsection (e) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60). Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
State court without authority to set aside judgment under subsection (e).
- State Court of DeKalb County had no authority to set aside a judgment at a subsequent term of court on the basis of fraud under subsection (e) of this section, since such court has no equity jurisdiction. Bouldin v. Haverty Furn. Cos., 136 Ga. App. 30, 220 S.E.2d 48 (1975).
Subsection (e) of this section cannot be used to excuse an untimely notice of appeal. Jordan v. Caldwell, 231 Ga. 226, 200 S.E.2d 868 (1973).
There is no constitutional right to a jury trial in equity cases, even when questions of fraud are involved, and under subsection (e) of this section there is no error in the judge proceeding to hear a matter involving a question of negligence sitting as both a judge and jury. Burns & Ledbetter, Inc. v. Primark Marking Co., 244 Ga. 341, 260 S.E.2d 58 (1979).
No right to jury trial when seeking to set aside divorce.
- Filing of a petition to have a divorce decree and agreement set aside for fraud and misrepresentation invokes the equitable powers of the court, and there is no constitutional right to a jury trial thereon. Keith v. Keith, 231 Ga. 230, 200 S.E.2d 891 (1973).
Complaint in equity to set aside judgment authorized.
- Absent an adequate remedy in law, a complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the complainant. Hartford Accident & Indem. Co. v. Hale, 119 Ga. App. 565, 168 S.E.2d 204 (1969).
Requirements for setting aside judgment based on verdict.
- If a judgment is based on a verdict, the same requisites for setting aside for fraud apply as to setting aside the judgment alone. Dollar v. Fred W. Amend Co., 184 Ga. 432, 191 S.E. 696 (1937) (decided under former Code 1933, § 110-710).
Decree entered upon a verdict void for uncertainty is necessarily itself too uncertain to be enforced, and must be set aside or arrested upon a proper motion. Jones v. Jones, 220 Ga. 753, 141 S.E.2d 457 (1965) (decided under former Code 1933, Ch. 7, T. 110).
Judgment rendered by fraud, accident, or mistake.
- Judgment of a court of competent jurisdiction may be set aside by the court that renders the judgment for fraud and irregularity. Mobley v. Mobley, 9 Ga. 247 (1851) (decided under former Civil Code 1910, § 5957).
Judgment founded on a verdict obtained by fraud practiced on a defendant and the court may be set aside, and the original case reinstated, in a court of law, with proper pleadings, and with all the parties at interest as parties to the motion, if such motion is made at the term of the court at which the verdict and judgment were entered, and if the movant shows that the movant was not in laches, has a meritorious defense, and announces ready for an instant trial. May v. May, 214 Ga. 352, 105 S.E.2d 11 (1958) (decided under former Code 1933, §§ 37-219 and 110-710).
If a judgment sought to be set aside or arrested was procured by accident, mistake, or fraud or through any defect not amendable appearing on the face of the record or pleadings or by perjury or any other irregularity, the judgment may be set aside or arrested. Chambless v. Oates Plumbing & Heating Co., 97 Ga. App. 80, 102 S.E.2d 83 (1958) (decided under former Code 1933, Ch. 7, T. 110).
If a defendant has been served and judgment is rendered against the defendant by fraud, accident, or mistake, without fault or negligence on the defendant's part, a petition in equity to set aside the judgment will lie. Dollar v. Fred W. Amend Co., 184 Ga. 432, 191 S.E. 696 (1967) (decided under former Code 1933, § 110-710).
Trial court did not abuse the court's discretion under O.C.G.A. § 9-11-60(d)(2) in setting aside a default judgment as the defendants' failure to answer could be found to be the direct result of the attorney's statement and inaction in leading the defendants to believe the suit was resolved. Cheuvront v. Carter, 263 Ga. App. 837, 589 S.E.2d 609 (2003).
Authority of court to grant necessary relief.
- Ordinarily, a judgment may be set aside for fraud, accident, or mistake or acts of the adverse party unmixed with negligence or fault of complainant by petition in equity after the term has passed; in such cases, the court may grant such relief, legal or equitable, as may be necessary to afford complete relief. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979).
If a plaintiff in petition and a defendant in counterclaim ask for such other and further relief as the court deems just and proper, the court has authority to grant such relief, legal or equitable, as may be necessary to afford complete relief, and the relief granted by the court is not sua sponte. Johnson v. Johnson, 244 Ga. 155, 259 S.E.2d 88 (1979).
Good defense must be shown.
- In order to successfully attack a judgment in equity on the grounds of fraud, accident, or mistake, a petitioner must show that there is a good defense to the action at law and that failure to make the defense was owing not to any negligence or fault of the petitioner, but to the fault of the defendants in equity or their attorney. Baxter v. Weiner, 246 Ga. 28, 268 S.E.2d 619 (1980).
Divorce decree not subject to be set aside in equity for restraining remarriage.
- Divorced wife cannot use the equitable proceedings under subsection (e) of O.C.G.A. § 9-11-60 to complain that a portion of the divorce settlement agreement restrains her from remarrying and is void as a matter of law; such a decree may not be set aside in equity unless the wife's assent was procured by fraud, duress, or mistake. Cronic v. Cronic, 238 Ga. 600, 234 S.E.2d 515 (1977).
Estoppel against parties to divorce by acknowledgment of service and admission of residency.
- Parties to divorce proceedings who have acknowledged service and admitted residency are estopped thereafter to claim that the court rendering the divorce decree was without jurisdiction to grant the divorce. Thompson v. Thompson, 237 Ga. 509, 228 S.E.2d 886 (1976).
Judgment against incompetent.
- Judgment rendered against an insane person who has no legal guardian and for whom no guardian ad litem has been appointed is voidable, even if the insane person was represented by counsel in the case. Keith v. Byram, 225 Ga. 678, 171 S.E.2d 120 (1969).
To set aside a judgment rendered against an incompetent defendant on the basis of the voidability, it is incumbent to file a petition in equity for such relief and proceed by complaint and summons. Sellers v. Bell, 151 Ga. App. 440, 260 S.E.2d 538 (1979).
Attack on judgment by incompetent defendant.
- Insane person may institute, by next friend, in the court in which the judgment was rendered, proceedings in the nature of a motion to set aside the judgment as void. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933) (decided under former Code 1933, Ch. 7, T. 110).
In a case in which a person who was non compos mentis was sued upon a purported contractual obligation, being served only by the leaving of a copy of the petition and process at the incapacitated person's residence, and was not represented in the suit by any guardian or other person, judgment rendered against the incapacitated person was capable in a proper proceeding brought in the incapacitated person's behalf of being set aside as invalid. Perry v. Fletcher, 46 Ga. App. 450, 167 S.E. 796 (1933) (decided under former Code 1933, Ch. 7, T. 110).
Complaint seeking to set aside a deed conveying an incompetent's interest to the defendant was a proper petition in equity under subsection (e) of O.C.G.A. § 9-11-60, warranting a set-aside of the ordinary court's judgment. McLendon v. Georgia Kaolin Co., 813 F. Supp. 834 (M.D. Ga. 1992).
Judgment improperly obtained against minor.
- General rule that an infant is bound by a judgment rendered in a suit in which the infant is represented by a next friend is subject to an exception in case of fraud, collusion, or like conduct on the part of the next friend, in which case the judgment may be set aside at the instance of the minor, even though it may be a consent judgment. Nelson v. Estill, 190 Ga. 235, 9 S.E.2d 73 (1940) (decided under former Code 1933, §§ 37-219 and 110-710).
Stipulation of state court held no bar to setting aside void judgment.
- Stipulation recited in an order that there was no fraud, accident, or mistake or any acts of the adverse party unmixed with negligence or fault of complainant in obtaining a judgment in the State Court of DeKalb County would not prevent the court of equity from setting aside such judgment as void for lack of jurisdiction of the person. Fain v. Hutto, 236 Ga. 915, 225 S.E.2d 893 (1976).
Prior denial of motion not res judicata when additional grounds asserted.
- If an equitable complaint also asserts additional grounds that were not included in a prior motion, the prior ruling of the trial judge against the motion to set aside the judgment is not res judicata. Holloway v. McCarthy, 151 Ga. App. 828, 261 S.E.2d 732 (1979), aff'd, 245 Ga. 710, 267 S.E.2d 4 (1980).
Evidence that the plaintiff in equity did not receive actual notice of a lawsuit did not constitute "fraud, accident, mistake, or the acts of the adverse party," and hence it was not a cognizable ground to vacate that judgment in a suit brought pursuant to subsection (e) of O.C.G.A. § 9-11-60. Loveless v. Conner, 254 Ga. 663, 333 S.E.2d 586 (1985).
Sufficient redress under subsection (e) in federal civil rights action.
- Existence of a state judicial procedure to set aside judgments obtained by fraud (O.C.G.A. § 9-11-60) was sufficient to redress the plaintiff in a federal civil rights action for the deprivation the plaintiff alleged occurred in the plaintiff's prior divorce proceeding through the alleged conspiracy of the divorce participants to take advantage of the judge's debilitated condition to procure rulings favoring the plaintiff's spouse. There was no violation of procedural due process and, because of this, the plaintiff could not state a claim for the denial of substantive due process. Collins v. Walden, 613 F. Supp. 1306 (N.D. Ga. 1985), aff'd, 784 F.2d 402 (11th Cir. 1986).
Due process.
- Judgment is void if the court which rendered the judgment acted in a manner materially inconsistent with due process. Johnson v. Mayor of Carrollton, 249 Ga. 173, 288 S.E.2d 565 (1982).
Party prevented by duress from defending a suit may be relieved from judgment. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962) (decided under former Code 1933, §§ 37-219 and 110-710).
Before a judgment will be set aside for duress, it must appear that the complainant had a good defense that the complainant was prevented from asserting at the original hearing or trial. Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975).
Both an extraordinary motion for new trial and a complaint in equity require the petitioner's showing that there is a good defense to the action at law, but no adequate remedy at law. Saxon v. Covington, 178 Ga. App. 271, 342 S.E.2d 754 (1986).
Failure to show fraud or inequitable conduct.
- Trial court did not err in denying the first tenant in common's protest to the court-ordered public sale of a sign owned by the first tenant in common and the second tenant in common as the sale was conducted at a proper time and place under the circumstances, and the second tenant in common did not commit any fraud or inequitable conduct in purchasing the sign at the public sale. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209, 582 S.E.2d 180 (2003).
2. Fraud
Judgment obtained by fraud is void and may for that reason be set aside by a court of equity. Lewis v. Lewis, 228 Ga. 703, 187 S.E.2d 872 (1972).
When each of the victims of a fraudulent scheme unsuccessfully sued the perpetrator for fraud and related claims, because the perpetrator filed an affidavit stating that the perpetrator had never had any business dealings with the victims, when, in fact, the perpetrator had such dealings and admitted this in a related criminal case, it appeared that the perpetrator may have obtained the judgments dismissing the victims' claims by fraud on the court, and the victims could seek to set those judgments aside under O.C.G.A. § 9-11-60(d)(2). Austin v. Cohen, 268 Ga. App. 650, 602 S.E.2d 146 (2004).
Fraud must be by adverse party or that party's counsel or agent.
- If equity has jurisdiction to set aside a judgment obtained through perpetration of fraud, it must be made to appear in an application for this purpose that the fraud was perpetrated by the adverse party or the adverse party's counsel or agents. Dorsey v. Griffin, 173 Ga. 802, 161 S.E. 601 (1931) (decided under former Civil Code 1910); Elliott v. Elliott, 184 Ga. 417, 191 S.E. 465 (1937) (decided under former Code 1933, § 110-710).
Type of fraud that would authorize the setting aside of a verdict at the instance of the movant is fraud of the other party or the other party's counsel. Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940) (decided under former Code 1933, Ch. 7, T. 110).
Although a court of equity has authority to annul and set aside a judgment obtained by fraud, accident, or mistake, it must be made to appear in an action therefor, if fraud is claimed, that the fraud was perpetrated by the adverse party or the adverse party's counsel or agent. Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954) (decided under former Code 1933, §§ 37-219 and 110-710).
Rather than third party.
- One who obtained a judgment at law and was not chargeable with any conduct amounting to fraud or imposition upon the adverse party in relation to the judgment would not be interfered with by a court of equity for mere reason that a stranger perpetrated a fraud that prevented the other party from interposing a defense. Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954) (decided under former Code 1933, §§ 37-219 and 110-710).
Fraud must be extrinsic to issues in case.
- Judgment cannot be vacated from fraud when the particular fraud was in issue in the original proceedings, even if additional evidence is discovered since trial to prove the fraud. Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932) (decided under former Civil Code 1910, § 5965).
Before equity will set aside a judgment on the ground of fraud by the opposite party, the fraud must be extrinsic to the issues in the case. Pike v. Andrews, 210 Ga. 553, 81 S.E.2d 817 (1954) (decided under former Code 1933, §§ 37-219 and 110-710).
Fraud must be actual rather than constructive.
- General rule is that a court of equity, upon proper application, will set aside a judgment obtained by fraud, if such fraud is extraneous to the issues in the proceeding attacked, and especially if the court has been imposed upon by such fraud; such fraud must be actual and positive, not merely constructive, and must involve perpetration of intentional wrong or breach of a duty growing out of a fiduciary relation. Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932) (decided under former Civil Code 1910, § 5965).
Fraud in procurement of a judgment to be set aside must have been actual and positive, done with knowledge, and not merely constructive fraud, committed in ignorance of the true facts. Rivers v. Alsup, 188 Ga. 75, 2 S.E.2d 632 (1939) (decided under former Code 1933, §§ 37-219 and 110-710).
Fraudulent acts to be specifically alleged.
- In order to authorize a court of equity to entertain a petition to set aside a judgment for fraud, the acts claimed to constitute the fraud must be clearly and specifically alleged. Wessel-Duval & Co. v. Ramsey, 170 Ga. 675, 153 S.E. 744 (1930) (decided under former Civil Code 1910).
Equity will not set aside a judgment for any matter that was actually presented and considered in the judgment assailed. Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932) (decided under former Civil Code 1910, § 5965).
Court will not retry same issues absent fraud, accident, or undue advantage.
- Court of equity will not retry the same issues determined in a former hearing by a court of competent jurisdiction in the absence of fraud, accident, or undue advantage of the prevailing party. Hubbard v. Whatley, 200 Ga. 751, 38 S.E.2d 738 (1946) (decided under former Code 1933, § 110-710).
Fraudulent inducement of withdrawal of defense.
- Equity will provide relief against a judgment obtained by the plaintiff's inducing the defendants to withdraw an equitable plea the defendants had filed by the plaintiff's promise to do the equity set up in the plea and to enter into writing to that effect if the plea were withdrawn, which the plaintiff failed to do. Jordan v. Harber, 172 Ga. 139, 157 S.E. 652 (1931) (decided under former Code 1933, Ch. 7, T. 110).
If one party fraudulently induces an adversary to withdraw a defense, the judgment will be set aside. Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932) (decided under former Civil Code 1910, § 5965).
Keeping opposing party from court.
- When a litigant keeps the opposite party from court, equity will relieve against the judgment obtained in the other party's absence. Walker v. Hall, 176 Ga. 12, 166 S.E. 757 (1932) (decided under former Civil Code 1910, § 5965).
One of the most frequently recurring forms of fraud on the part of one litigant against the other, entitling the latter to relief in equity against the judgment finally entered, is the making of some agreement or representation for the purpose of preventing an appearance or defense in the original action, reliance on which has the effect intended. Jordan v. Harber, 172 Ga. 139, 157 S.E. 652 (1931) (decided under former Code 1933, Ch. 7, T. 110).
When one party gives the other party assurances, upon which the other party can reasonably rely, that the suit will be dismissed or judgment will not be taken, and then procures a judgment, taking advantage of the trust and confidence of the other party, the party misled, who is not negligent, has a ground to set aside the judgment. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962) (decided under former Code 1933, §§ 37-219 and 110-710).
Verdict rendered on basis of fraudulent acknowledgment of service.
- In a case in which an action requiring personal service on the defendant proceeds on an acknowledgment of service by defendant under O.C.G.A. § 9-10-73, the verdict rendered therein in favor of the plaintiff is invalid if such acknowledgment was, in fact, a forgery or was obtained by fraud, and a motion to set aside such verdict, made at the same term at which the verdict was rendered, would be available. Ketchem v. Ketchem, 191 Ga. 140, 11 S.E.2d 788 (1940) (decided under former Code 1933, Ch. 7, T. 110).
Failure to disclose matters defeating own claim not fraud.
- Mere failure of a party to disclose to the court or an adversary matters that would defeat the party's own claim or defense is not such fraud as will justify or require vacation of the judgment. Buice v. T. & B. Bldrs., Inc., 219 Ga. 259, 132 S.E.2d 784 (1963) (decided under former Code 1933, §§ 37-219 and 110-710).
Averments of fraud cannot be predicated upon misrepresentations of law or as to matters of law. Robbins v. National Bank, 241 Ga. 538, 246 S.E.2d 660 (1978).
Fraud must be collateral to issues tried.
- Matters once litigated generally are final, and hence the fraud shown by the complainant seeking to set aside the judgment and in equity must be extrinsic or collateral to the issues tried in rendering that judgment. Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975).
Duress included in term "fraud".
- Word "fraud" in subsection (e) of this section may be construed to include duress, as duress is but a species of fraud whereby one is induced contrary to one's will from presenting a defense to an action. Frost v. Frost, 235 Ga. 672, 221 S.E.2d 567 (1975).
Fraud not predicated on oral promise not to enforce consent judgment.
- Consent judgment partakes of characteristics of both a contract and a judgment, and just as fraud cannot be predicated upon an oral promise not to enforce the unambiguous terms of a written contract, it cannot be predicated upon similar promises not to enforce unambiguous terms of a consent judgment. Chambers v. Citizens & S. Nat'l Bank, 242 Ga. 498, 249 S.E.2d 214 (1978), overruled on other grounds, Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981).
Proof of fraud.
- Rule that fraud may be shown by slight circumstances, contained in O.C.G.A. § 23-2-57, is not applicable to suits to set aside judgments. Leventhal v. Citizens & S. Nat'l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982).
It is not fraudulent to assert a claim against a person voluntarily dismissed as a defendant in an earlier suit. Murray v. Chulak, 250 Ga. 765, 300 S.E.2d 493 (1983).
Attorney's knowing pursuance of claim against wrong person.
- "Fraud" within the meaning of subsection (e) of O.C.G.A. § 9-11-60 was practiced upon the defendant by the plaintiff through actions of the plaintiff's attorney, who was aware of the plaintiff's employee-spouse's representation to the defendant that the spouse would "handle" the matter of the action's having been filed against the wrong person, but who nonetheless pursued the claim of the plaintiff to judgment and sought to enforce the judgment by legal process. Cox v. Kirkland, 249 Ga. 796, 294 S.E.2d 514 (1982).
Superior court may set aside a judgment of a probate court as void for fraud, if an allegation of fact in the petition to the probate court that was necessary to give the court jurisdiction was known by the petitioner to be false and was therefore a fraud upon the court. Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952) (decided under former Code 1933, Ch. 7, T. 110).
Real-estate broker's liability to purchase for misrepresentation or nondisclosure of physical defects in property sold.
- Judgment of a probate court discharging the administrator may be set aside in a court of equity, if the judgment was procured by fraud practiced upon the heirs or the court. White v. Roper, 176 Ga. 180, 167 S.E. 177 (1932) (decided under former Code 1933, § 37-219 and Ch. 7, T. 110).
Although superior courts are not ordinarily empowered on equitable petition to set aside the probate of a will by a probate court, a superior court may set aside as void a judgment of the probate court for fraud, accident, or mistake. Abercrombie v. Hair, 185 Ga. 728, 196 S.E. 447 (1938) (decided under former Code 1933, §§ 37-219 and 110-710).
Fraudulently procured divorce decree not set aside at instance of participant.
- One who participates in fraudulently procuring a divorce decree may not then go into equity to have the decree set aside as allegedly void due to continuous cohabitation of the parties after the action was filed. Crowe v. Crowe, 245 Ga. 719, 267 S.E.2d 14 (1980).
Court of "appropriate jurisdiction" for attack on divorce decree obtained by fraud.
- For an attack upon part of an original divorce decree, if the court's jurisdiction was based upon the original decree having allegedly been obtained by fraud, a superior court that granted the decree attacked was the superior court of "appropriate jurisdiction." Hill v. Harper, 230 Ga. 246, 196 S.E.2d 397 (1973).
Superior court retains jurisdiction.
- If a party attacks a judgment via complaint in equity on the basis that the judgment was obtained by fraud, the superior court granting the judgment attacked is the superior court of appropriate jurisdiction. Peagler v. Glynn County Fed. Employees Credit Union, 171 Ga. App. 9, 318 S.E.2d 687 (1984).
Fraud not found.
- Trial court abused the court's discretion by vacating the domesticated foreign judgment because the seller failed to establish a jurisdictional defense before the trial court in Georgia or in Texas; the court did not find that the seller was harmed by the conduct of the purchaser, including extrinsic fraud, unmixed with its own negligence as required by O.C.G.A. § 9-11-60(d)(2), or that the conduct of the purchaser created a non-amendable defect in the judgment as required by O.C.G.A. § 9-11-60(d)(3). Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., S.W.3d (Tex. Ct. App. Apr. 17, 2003).
3. Negligence of Petitioner
Relief against judgment obtained when defendant not negligent..
- If the defendant has been deprived of a hearing by the plaintiff's fraud, unmixed with negligence on the defendant's own part, a petition in equity to set aside the judgment will lie. Nix v. Baxter, 46 Ga. App. 153, 167 S.E. 115 (1932) (decided under former Civil Code 1910).
Negligence by complainant.
- Equity will not intervene to set aside a judgment of a court of competent jurisdiction that might have been prevented except for negligence of the complainant. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934) (decided under former Civil Code 1910, § 5965).
Judgment will not be set aside in a court of equity on the ground that the defendant had a good defense of which the defendant was ignorant, unless the defendant's ignorance and failure to assert such defense were unmixed with any fault of negligence on the defendant's part. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934) (decided under former Civil Code 1910, § 5965).
Judgment may be set aside in equity for fraud, accident, or mistake, but only if there is no negligence or fault of the petitioner. Bach v. Phillips, 200 Ga. 308, 37 S.E.2d 407 (1946) (decided under former Code 1933, §§ 37-219 and 110-710).
Motion to vacate or set aside a verdict and judgment after the term of court at which the verdict and judgment are rendered will be denied if it appears that the movant has not been diligent or is negligent. Fricks v. J.R. Watkins Co., 211 Ga. 110, 84 S.E.2d 51 (1954) (decided under former Code 1933, Ch. 7, T. 110).
Because the defendant in a pending lawsuit negligently failed to make a defense, equity would not intervene to grant any relief from a judgment obtained against the defendant in consequence of the defendant's negligence. Erwin v. Marx, 228 Ga. 495, 186 S.E.2d 735 (1972); Stratton v. Bingham, 238 Ga. 287, 232 S.E.2d 560 (1977).
If the defendant negligently allows a default judgment to be entered against the defendant, equity will not intervene to grant relief from the judgment obtained in consequence of the defendant's negligence. Richardson v. Industrial Welding & Tool Supplies, Inc., 238 Ga. 144, 231 S.E.2d 760 (1977).
Phrase "unmixed with the negligence or fault of complainant," in subsection (e) of O.C.G.A. § 9-11-60, modifies the words "fraud, accident or mistake" as well as the words "acts of the adverse party." Leventhal v. Citizens & S. Nat'l Bank, 249 Ga. 390, 291 S.E.2d 222 (1982).
If there is any negligence or fault on the part of the movant, O.C.G.A. § 9-11-60 is inapplicable. Mitchell v. Speering, 239 Ga. App. 472, 521 S.E.2d 419 (1999).
No relief in equity from consequences of one's own negligence.
- If a party has a good defense at law and from negligence fails to set it up at the proper time, that party must take the consequences of its own laches; the party cannot go into equity to be relieved from the consequences of such negligence. Peacock v. Walker, 213 Ga. 628, 100 S.E.2d 575 (1957) (decided under former Code 1933, §§ 37-219 and 110-710).
To authorize setting aside a judgment after the term at which the judgment was rendered, the actions of the adverse party causing the party's failure to appear and defend must be of such character that reliance on those actions did not amount to laches or negligence. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962) (decided under former Code 1933, §§ 37-219 and 110-710).
Negligence of a client or the client's attorney in failing to examine the original pleadings in a case is not ground for setting aside the judgment. Rahal v. Titus, 110 Ga. App. 122, 138 S.E.2d 68 (1964) (decided under former Code 1933, Ch. 7, T. 110).
Party must exercise reasonable diligence.
- Party is charged with the legal duty of keeping advised as to the progress of litigation in which the party is interested, and of being prepared, so far as reasonably possible, to meet every emergency arising therein. Hurt Bldg., Inc. v. Atlanta Trust Co., 181 Ga. 274, 182 S.E. 187 (1935) (decided under former Code 1933, § 110-710).
Individual who, through ignorance, allows judgment to go adversely cannot afterwards have the judgment set aside, even on the ground of fraud, if that individual has not exercised ordinary diligence in the premises. Hoke v. Walraven, 57 Ga. App. 106, 194 S.E. 610 (1937) (decided under former Code 1933, § 110-710).
For a setting aside of judgment, it must appear that it was not due to the defendant's negligence that fraud was perpetrated, and that due diligence by the defendant would not have prevented the fraud. Hirsch v. Collier, 104 Ga. App. 271, 121 S.E.2d 318 (1961), later appeal, 106 Ga. App. 652, 127 S.E.2d 859 (1962) (decided under former Code 1933, §§ 37-219 and 110-710).
Judgment will not be set aside if the party complaining thereof does not show proper diligence in discovering or attempting to discover facts upon which the party relies to annul the judgment. Marshall v. Russell, 222 Ga. 490, 150 S.E.2d 667 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 857, 17 L. Ed. 2d 783 (1967) (decided under former Code 1933, § 110-710).
Court of equity will not act unless it is shown that the party seeking relief has exercised reasonable diligence. Vinson v. Citizens & S. Nat'l Bank, 223 Ga. 54, 153 S.E.2d 436 (1967) (decided under former Code 1933, § 110-710).
One who would have equity must do equity.
- Although the judgment of a court having no jurisdiction of the person or subject matter or void for any other cause is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it, this rule must be construed in the light of principles that one who would have equity must do equity, that one who comes into a court of equity with unclean hands must be denied relief, and that one will not be permitted to take advantage of one's own wrong or to trifle with the courts. Corder v. Fulton Nat'l Bank, 223 Ga. 524, 156 S.E.2d 452 (1967) (decided under former Code 1933, Ch. 7, T. 110).
Question of diligence for jury.
- Ordinarily, the question of whether or not the complainant could have ascertained the falsity of representations by proper diligence is for determination by the jury. City of Dalton v. United States Fid. & Guar. Co., 216 Ga. 602, 118 S.E.2d 475 (1961) (decided under former Code 1933, § 110-710).
Negligence in determining contents to divorce action after waiver of process.
- Because a wife voluntarily signed an acknowledgment of service and waiver of process with respect to a suit for divorce, left the state, and made no investigation as to the contents of the suit, despite allegations that the husband breached an agreement not to submit the question of custody, judgment could not be set aside in equity because of the petitioner's negligence. Bach v. Phillips, 200 Ga. 308, 37 S.E.2d 407 (1946) (decided under former Code 1933, §§ 37-219 and 110-710).
Failure to appear due to erroneous assumption as to date of trial.
- Failure of a defendant to attend and defend a suit cannot be relieved in equity upon the ground that the defendant was advised by the defendant's attorney that the case would not be tried until a later term, which advice was based on an erroneous assumption. W.T. Rawleigh Co. v. Seagraves, 178 Ga. 459, 173 S.E. 167 (1934) (decided under former Civil Code 1910, § 5965).
Absence of counsel.
- After a trial on the merits, if evidence is presented to the judge sitting as the trier of facts, it is an abuse of discretion for the trial court to set aside the judgment, which in effect amounts to the grant of a new trial, merely because counsel failed to appear and defend the case when the case was called to trial, even though the reason for such nonappearance is that counsel mistakenly thought the case would be checked or had been checked over or that because of other duties counsel overlooked the fact that the case had been called for trial. Carolina Tree Serv., Inc. v. Cartledge, 96 Ga. App. 240, 99 S.E.2d 705 (1957) (decided under former Code 1933, § 110-702).
Judgment rendered while counsel on leave with permission of court.
- Because the defendant's attorney was granted a leave of absence by the judge and the pleadings showed that the defendant might have a good defense, equity could issue an injunction and set aside judgment rendered in the attorney's absence. Eatonton Oil & Auto Co. v. Ledbetter, 174 Ga. 715, 163 S.E. 891 (1932) (decided under former Civil Code 1910, § 5965).
Taking of judgment after settlement as fraud.
- Because an insured party accepted a draft from the insurance company in full and final settlement of insurance claims and in consideration of an express or implied promise to pay the costs of court and dismiss the pending lawsuit against the company, the insured's taking of judgment thereafter amounted to "fraud" within the meaning of subsection (e) of O.C.G.A. § 9-11-60, and the insurance company was not under these circumstances negligent or at fault in the meaning of subsection (e) in relying upon the insured's promise and in failing to answer, pay the costs, and file the insured's attorney's written dismissal. Marsh v. Northland Ins. Co., 242 Ga. 490, 249 S.E.2d 205 (1978). For comment, see 31 Mercer L. Rev. 359 (1979).
4. Accident or Mistake
Nature of mistake relievable in equity.
- Mistake relievable in equity is an erroneous mental condition, conception, or conviction induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both parties to a transaction, without the mistake's erroneous character being intended or known at the time. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958) (decided under former Code 1933, § 110-710).
To be remediable at equity, a mistake must be one of past or present fact and not one of law. Robbins v. National Bank, 241 Ga. 538, 246 S.E.2d 660 (1978).
Docketing error made in the clerk's office amounts to an accident or mistake relievable in equity so far as the defendant is concerned, provided that the failure to answer is attributable thereto, without fault or negligence on the defendant's part. Dollar v. Fred W. Amend Co., 184 Ga. 432, 191 S.E. 696 (1937) (decided under former Code 1933, § 110-710).
Mistake as to legal effect no ground for relief.
- Simple mistake by a party as to the legal effect of an agreement that the party executes or as to the legal result of an act that the party performs is no ground for either defensive or affirmative relief. Robbins v. National Bank, 241 Ga. 538, 246 S.E.2d 660 (1978).
Judgments erroneously entered should be set aside if the mistake was that of the court and not that of the parties. Toomer v. Hopkins, 204 Ga. 34, 48 S.E.2d 733 (1948) (decided under former Code 1933, § 110-710).
Vacation of default judgment because clerk failed to enter filing of answer.
- Because the clerk of the superior court, through inadvertence, omitted to make an entry of filing on the garnishee's answer, which had in fact been filed, it was not an error upon such showing being duly made to direct the clerk to make such an entry nunc pro tunc, and when the record was so amended, corrected pleadings and record alone authorized the court to arrest and vacate the default judgment against the garnishee. Simmons v. J.A. Jones Constr. Co., 72 Ga. App. 517, 34 S.E.2d 300 (1945) (decided under former Code 1933, Ch. 7, T. 110).
When court unaware of filing answer by garnishee.
- Showing that a letter asserting that the letter was an answer to a summons of garnishment was filed within the time required and that the court, unaware of this filing, signed a default judgment against the garnishee was a sufficient showing upon which to grant a motion to set aside the default judgment. Aetna Fin. Co. v. Lee County Mfg., Inc., 116 Ga. App. 200, 156 S.E.2d 374 (1967) (decided under former Code 1933, § 110-702).
Relief from condemnation judgment based on mistake of fact.
- Because, due to a mistake of fact unmixed with negligence, a condemnation proceeding for a public road was conducted throughout upon the theory that abutting property would be improved rather than damaged, the petition in equity, alleging the facts and alleging that the mistake prevented the owners from proving consequential damage, alleged a cause of action to set aside an award and judgment of condemnation and to recover full damages. Whipple v. County of Houston, 214 Ga. 532, 105 S.E.2d 898 (1958) (decided under former Code 1933, §§ 37-219 and 110-710).
Contested decisional error by trial or appellate court not "mistake".
- Although a court of equity may set aside a judgment for mistake, fraud, or accident, a contested decisional error by a trial or appellate court, as to fact, law, or both, resulting in a judgment, is not such a mistake as can be rectified by a subsequent action, in equity or otherwise, challenging that judgment. Todd v. Dekle, 240 Ga. 842, 242 S.E.2d 613 (1978).
Complaint seeking to set aside a judgment on the ground that the judgment resulted from a contested decisional error of a court fails to state a claim upon which relief can be granted. Todd v. Dekle, 240 Ga. 842, 242 S.E.2d 613 (1978).
Entry of default judgment against garnishee who filed answer as accident or mistake.
- Entry of default judgment against a garnishee who filed an answer, for the amount claimed to be due on the garnishor's judgment, was erroneous, and under the court's equitable authority the superior court was authorized to set aside the default judgment on the ground that the judgment had been entered by accident or mistake. Gibbs v. Spencer Indus., Inc., 244 Ga. 450, 260 S.E.2d 342 (1979).
Factual dispute regarding error or omission must be rectified by complaint in equity.
- If there is a factual dispute between the parties about an error or omission, the only way for the complaining party to rectify the alleged error or omission is by complaint in equity to set the judgment aside because of the alleged mistake. Park v. Park, 233 Ga. 36, 209 S.E.2d 584 (1974).
Divorce rendered against wife without process and notice.
- Allegation that the defendant obtained a divorce on November 2, 1942, although the parties lived together as husband and wife until November 1, 1942, that the petitioner had no knowledge of the pendency of a divorce action, not having been served with process nor having acknowledged service thereof, and that the defendant kept the petitioner ignorant of the pending suit, sufficiently stated grounds of fraud for setting aside the divorce decree in equity. Robertson v. Robertson, 196 Ga. 517, 26 S.E.2d 922 (1943) (decided under former Code 1933, §§ 37-219 and 110-710).
Complaint seeking to modify a divorce decree for fraud may be treated as a petition in equity under subsection (e) of this section when the complaint was not filed within the term in which the decree was entered, but was filed within three years from entry of the decree. Towns v. Towns, 242 Ga. 580, 250 S.E.2d 453 (1978).
Failure of party accepting substitute process to forward process.
- If substituted process is served on a person of suitable age and discretion residing with the defendant, the failure of the person served actually to hand over the summons and complaint to the party defendant does not constitute "fraud, accident, or mistake" within the meaning of subsection (e) of O.C.G.A. § 9-11-60 and, thus, does not constitute grounds in equity for the setting aside of a default judgment. Villaruz v. Van Diviere Oil Co., 251 Ga. 145, 304 S.E.2d 58 (1983).
Erroneous failure to appear not a "mistake".
- Because a notice of hearing on a motion for summary judgment was given to the appellant's counsel of record, and failure to appear was due solely to a mistake on the part of the appellant or the appellant's counsel, subsection (e) of O.C.G.A. § 9-11-60 did not afford a basis for relief from summary judgment granted to the appellee. McCullough v. Molyneaux, 163 Ga. App. 352, 294 S.E.2d 560 (1982).
Relief from a workers' compensation award in which the employer was erroneously found to be uninsured should properly have been sought in a court of equity pursuant to O.C.G.A. § 9-11-60. Russell v. Fast Framers, Inc., 164 Ga. App. 771, 298 S.E.2d 303 (1982).
Time of Relief
Applicability of O.C.G.A.
§ 9-11-6(a). - Subsection (f) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) falls squarely within the rule of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(a)), which provides that the day of the act, event, or default from which the designated period of time begins to run shall not be included, whether the period is measured in days, months, years, or some other unit of time. Earwood v. Liberty Loan Corp., 136 Ga. App. 799, 222 S.E.2d 204 (1975).
Motion to set aside voidable judgment untimely.
- Although the Georgia judgment was duplicative of the previously obtained South Carolina judgment, the Georgia Judgment was no longer voidable because the defendant failed to timely move to set the judgment aside within three years and, thus, the defendant was bound by that judgment. Williams v. Willis, 340 Ga. App. 740, 798 S.E.2d 323 (2017).
Judgment that is void for lack of jurisdiction of the person may be attacked at any time; and a default judgment entered against a party in an action in which there was no valid service of process is void, notwithstanding evidence that the defendant had actual knowledge of the suit. Gieger Fin. Co. v. Travis, 146 Ga. App. 224, 246 S.E.2d 132 (1978).
Subsections (d) and (f) of O.C.G.A. § 9-11-60 provide that a judgment is subject to being set aside at any time by motion premised upon a lack of jurisdiction over the person; unless a party has waived lawful service of process, such service is essential to give a court jurisdiction over that party's person. Benton v. Modern Fin. & Inv. Co., 244 Ga. 533, 261 S.E.2d 359 (1979).
Magistrate court erred in denying as untimely a motion to set aside a default judgment for lack of personal jurisdiction asserting that the defendant was improperly served by publication; under O.C.G.A. §§ 9-11-60(f) and15-10-43(g), a motion to attack a void judgment could be filed at any time. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332, 825 S.E.2d 817 (2019).
Even if execution has been issued.
- Void judgment is a mere nullity and has no vital force under any consideration or at any time; such a judgment may be attacked in any court and by anybody whenever it becomes necessary, even if an execution has been issued upon it. Ricks v. Liberty Loan Corp., 146 Ga. App. 594, 247 S.E.2d 133 (1978).
No bar, estoppel, or limitation on attack on void judgment.
- Statutes of limitation have no application to void judgments, and there can be no bar, estoppel, or limitation as to the time when a void judgment may be attacked. Wasden v. Rusco Indus., Inc., 233 Ga. 439, 211 S.E.2d 733 (1975), overruled on other grounds,, Murphy v. Murphy, 263 Ga. 280, 430 S.E.2d 749 (1993); Ricks v. Liberty Loan Corp., 146 Ga. App. 594, 247 S.E.2d 133 (1978).
Three-year limit not applicable to judgment void on its face.
- Three-year limitation of subsection (f) of this section does not apply to an action to set aside a judgment that is void on the judgment's face. Ricks v. Liberty Loan Corp., 146 Ga. App. 594, 247 S.E.2d 133 (1978).
Trial court properly dismissed the defendant because the bare conclusion that that defendant was part of a scheme to divert checks from a business did not follow from facts well pled in the complaint and the defendant also moved to set aside the default judgment within the three years required under O.C.G.A. § 9-11-60(f). Stewart Ausband Enters. v. Holden, 349 Ga. App. 295, 826 S.E.2d 138 (2019).
Deadline applicable.
- Deadline in O.C.G.A. § 9-11-60(f) was held to apply to entry of judgment complained about. Stewart Ausband Enters. v. Holden, 349 Ga. App. 295, 826 S.E.2d 138 (2019).
Judgment void for lack of personal jurisdiction.
- Three-year statute of limitation that applies to all motions or proceedings to attack or set aside a judgment does not apply to a judgment void because of lack of jurisdiction of the person, which may be attacked at any time. Webb v. National Disct. Co., 148 Ga. App. 313, 251 S.E.2d 163 (1978).
Relation back of service.
- Because a suit in equity to attack judgments was filed prior to the running of the statute of limitations, but process was not served until the statute had run because the defendant was residing outside the state and maintained no fixed address and the defendant's attorney would not accept process nor divulge the defendant's location, process would relate back to the time of filing. Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32, cert. denied, 439 U.S. 805, 99 S. Ct. 61, 58 L. Ed. 2d 98 (1978).
Untimely motion did not afford relief.
- Trial court properly denied a motion to correct a judgment entered against two debtors and their guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered as they failed to show any entitlement to relief or exception as to why they could not have timely sought the relief requested; moreover, while a judgment which was void for lack of jurisdiction could be attacked at any time, all other motions to set aside a judgment had to be brought within three years after the judgment was entered, pursuant to O.C.G.A. § 9-11-60(f). De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196, 651 S.E.2d 97 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. 2007).
Motion filed out of term in which judgment issued.
- In a dispute involving new and former owners of a daycare center, the trial court was without authority to grant the new owners' motion for reconsideration of the dismissal of their motion to set aside a default judgment. The motion for reconsideration was filed and granted four terms after the judgment at issue; thus, the order granting the motion for reconsideration was void. Levin Co. v. Walker, 289 Ga. App. 299, 656 S.E.2d 588 (2008), cert. denied, 2008 Ga. LEXIS 399 (Ga. 2008).
Judgments that are not void on their face must be attacked by direct proceeding. Such an attack upon the judgment by a third party may be made at any time, whether at law or equity, in an affirmative defense. Ray v. Tattnall Bank, 167 Ga. App. 871, 307 S.E.2d 754 (1983).
Denial of request to reconsider decision not appealable in own right.
- Denial of a motion that does not purport to be based either on a nonamendable defect or on a lack of jurisdiction but is simply a request for the trial court to reconsider the court's decision, is not appealable in its own right pursuant to subsection (d) of O.C.G.A. § 9-11-60, and the filing of such a motion does not extend the time for filing a notice of appeal. Dougherty County v. Burt, 168 Ga. App. 166, 308 S.E.2d 395 (1983).
Complaint filed three years after judgment properly dismissed.
- Because the plaintiff brought a complaint in equity seeking to set aside a final judgment that granted to the plaintiff the adoption of the defendant's child, alleging that the adoption had been fraudulently procured by the defendant's misrepresentation concerning the child's legitimacy, but the complaint in equity was filed more than three years after the entry of the challenged adoption decree, the trial court did not err in dismissing the complaint under subsection (b) of O.C.G.A. § 9-11-60. Kirby v. Kirby, 165 Ga. App. 163, 300 S.E.2d 192 (1983).
Action to set aside, on the ground of duress, that portion of a divorce decree that obligated the former wife to pay child support was required to have been brought within three years of the decree's entry. Mehdikarimi v. Emaddazfull, 268 Ga. 428, 490 S.E.2d 368 (1997).
Statute of limitations.
- Suit in equity to enjoin enforcement of a judgment that allegedly has been satisfied by settlement after institution of the litigation, and payment of the agreed amount, is not barred by the three-year statute of limitations set forth in subsection (f) of O.C.G.A. § 9-11-60, nor is it barred by the four-year statutes applicable to a breach of contract. Wells v. Mullis, 255 Ga. 426, 339 S.E.2d 574 (1986).
Putative father's petition for a blood test was, in substance, an extraordinary motion for a new trial based on newly discovered evidence and was not subject to the limitation period in subsection (f) of O.C.G.A. § 9-11-60. Department of Human Resources v. Browning, 210 Ga. App. 546, 436 S.E.2d 742 (1993).
Incompetent's fraud claim not expired.
- Although the judgment under attack in the case was entered in 1971, and the case was not filed until 1985, given O.C.G.A. § 9-3-90's grace period for mental incompetents, the statute of limitations on the incompetent's fraud claim never began to run. McLendon v. Georgia Kaolin Co., 813 F. Supp. 834 (M.D. Ga. 1992).
Seller could not circumvent time period.
- Because a collateral attack of an Alabama arbitration award was untimely for purposes of 9 U.S.C. § 12, which outlined a three-month statute of limitations to challenge such an award based on fraud, corruption, or partiality of the arbitrator, and a home seller's motion under O.C.G.A. § 9-11-60(d) did not afford the seller an avenue to circumvent this time period, the trial court erred in denying a home buyer's petition to domesticate the award. McDonald v. H & S Homes, LLC, 290 Ga. App. 103, 658 S.E.2d 901 (2008).
Dismissal pursuant to five-year rule.
- Trial court properly dismissed law clients' malpractice action pursuant to the "five-year rule" as there was no written order entered in the trial court for at least five years; that period was not tolled during the pendency of an appeal because the trial court had jurisdiction to proceed with at least part of the case. Paul v. Smith, Gambrell & Russell, 323 Ga. App. 447, 746 S.E.2d 739 (2013).
Correction of Clerical Mistakes
Application for appeal not required.
- Although, basically, the import and result of motions to set aside and to correct judgments are in most instances identical, and logically the legislature probably did not contemplate allowing direct appeals from orders under subsection (g) of O.C.G.A. § 9-11-60 while mandating a discretionary approach for those under subsection (d) of § 9-11-60, the clear language of the statute prevents an interpretation that would render both motions subject to O.C.G.A. § 5-6-35(b) and, therefore, motions under subsection (g) of § 9-11-60 do not require applications to appeal. Crawford v. Kroger Co., 183 Ga. App. 836, 360 S.E.2d 274, cert. denied, 183 Ga. App. 905, 360 S.E.2d 274 (1987).
Denial of a motion to set aside brought under subsection (g) of O.C.G.A. § 9-11-60 is directly appealable. Kendall v. Peach State Mach., Inc., 215 Ga. App. 633, 451 S.E.2d 810 (1994).
Orders entered upon motions to correct a clerical error pursuant to subsection (g) of O.C.G.A. § 9-11-60 do not require applications to appeal. Leventhal v. Moseley, 264 Ga. 891, 453 S.E.2d 455 (1995); Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 481 S.E.2d 903 (1997).
Amended order could not be considered since notice of appeal already filed.
- Trial court's amended order could not be considered for purposes of an appeal, even if a remand became necessary as a consequence of the amendment to the order occurring after the notice of appeal was filed in the case. Thomas v. Gregory, 332 Ga. App. 286, 772 S.E.2d 382 (2015).
Court authorized to correct clerical mistakes at any time.
- Under subsection (g) of O.C.G.A. § 9-11-60, clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of the court's own initiative or on motion and such notice as the court orders. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979).
Clerical errors from any accident, slip, or omission may at any time be corrected by the court. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979).
Trial court improperly stated that the court had no jurisdiction over any matter involving the defendant's case as certain issues, such as the correction of a clerical mistake in a judgment or court order at any time under O.C.G.A. § 9-11-60(g) remained within a trial court's jurisdiction; however, the trial court properly ruled on the defendant's motion to correct the defendant's sentence on the merits. Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003).
Trial court properly corrected an omission in a prior summary judgment order, which failed to reserve the matter of the amount of attorney fees awarded to a seller for final determination, even though the term of court in which the summary judgment had been entered had expired; the buyer cited no evidence creating a factual dispute as to the trial court's own admission that the court's failure to reserve the matter of the amount of attorney fees for final determination was due to oversight or omission. Sofran Peachtree City, LLC v. Peachtree City Holdings, LLC, 272 Ga. App. 851, 614 S.E.2d 111 (2005).
Probate court violated O.C.G.A. § 15-6-21(c)'s notice requirements by setting aside a partial final consent order sua sponte without notice to the parties' counsel. If the intent of the final order the court later entered was to supplement and not supplant the partial final order, O.C.G.A. § 9-11-60(g) allowed the fact-finder to correct "at any time" the mistaken omission of the partial final order's provision concerning appointment of an executor from the final order. Harwell v. Harwell, 292 Ga. App. 339, 665 S.E.2d 33 (2008).
Trial court properly exercised the court's inherent power to correct a clerical mistake because the amended judgment did not alter the jury's verdict, but rather amended the language of the judgment to properly reflect an award for interest calculated on the principal amounts. Wilson v. Wernowsky, Ga. App. , 846 S.E.2d 101 (2020).
Provided matters of substance not affected.
- Clerical mistakes can be corrected by the court at any time, provided the mistakes are confined to the plain meaning and not inflated to include matters of substance. Clark v. Ingram, 150 Ga. App. 127, 257 S.E.2d 33 (1979).
Clerical error or omission should be obvious on face of record.
- Ordinarily, a judgment should be modified under subsection (g) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) only if the clerical error or omission is obvious on the face of the record. Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975).
Subsection (g) of Ga. L. 1967, p. 226, §§ 26, 27, and 30 (see now O.C.G.A. § 9-11-60) was ordinarily to be used when a clerical error or omission was obvious on the face of the record. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973).
Except after hearing establishing clerical nature of omission.
- There is an exception to the general principle of modifying only obvious clerical errors if there has been a hearing on a motion to correct a judgment and the evidence compels the conclusion that an omission was in fact a clerical error. Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975).
Voluntary dismissal is "order" within meaning of subsection (g) of O.C.G.A. § 9-11-60, and is subject to correction as provided therein. Page v. Holiday Inns, Inc., 245 Ga. 12, 262 S.E.2d 783 (1980).
Reentry of order of dismissal.
- Since a dismissal order was never served upon the plaintiff because the trial court's staff misaddressed the envelope, the court properly set aside and then reentered the dismissal order and the order was effective as of the date the order was actually reentered. Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 534 S.E.2d 547 (2000).
Dismissal with prejudice could be corrected to dismissal without prejudice.
- Trial court erred in denying the plaintiffs' motion under O.C.G.A. § 9-11-60(g) to withdraw the plaintiffs' dismissal with prejudice and submit a dismissal without prejudice. The plaintiffs' counsel and the defendant driver's counsel submitted affidavits that they had intended the dismissal to be without prejudice and had filed the dismissal with prejudice in error; § 9-11-60(g) allowed the correction of errors arising from oversight or omission, and the plaintiffs' UM insurer was not prejudiced by this mistake. Mullinax v. State Farm Mut. Auto. Ins. Co., 303 Ga. App. 76, 692 S.E.2d 734 (2010).
Judgment by default may be corrected to conform to the pleadings at a subsequent term of the court, even after execution has been issued and the property sold. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1969).
Court, when no adverse rights have intervened, has jurisdiction nunc pro tunc to enter an order of dismissal accurately reflecting what occurred upon trial of the case. Israel v. Joe Redwine Ins. Agency, 120 Ga. App. 14, 169 S.E.2d 347 (1969).
Correction of irregularities in judgment.
- Not only mere clerical errors, but also irregularities in the judgment, if the irregularities appear on the face of the record, may be corrected after expiration of the term, and irregular judgments may be made perfect. Williams v. Stancil, 119 Ga. App. 800, 168 S.E.2d 643 (1979).
Mathematical error on face of judgment.
- If a mathematical error in the principal amount of the judgment is complained of, but the error is shown on the face of the judgment, the judgment can be amended at any time so as to speak the truth. Brannon v. Trailer Craft Mfg. Co., 130 Ga. App. 766, 204 S.E.2d 477 (1974).
Correction of mutual mistake.
- If an omission is made in a judgment by mutual mistake of the parties, the trial judge is authorized to correct the judgment on the motion made for that purpose. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973).
Trial judge had authority to correct the judgment in a divorce case incorporating an agreement of the parties, which by mutual mistake omitted the words "per child," because the adverse party was given notice of the motion to correct such judgment, and at the hearing admitted that the agreement that was made the judgment of the court omitted the words "per child" as intended by the parties. Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973).
Correction of judgment to conform to parties' agreement.
- If both parties to a judgment agree that the judgment entered did not speak their agreement, a motion to modify and correct such judgment is permissible. Brown v. Brown, 233 Ga. 581, 212 S.E.2d 378 (1975).
Because the mother's attorney unknowingly signed a general release that was inadvertently prepared by the injured party's insurer instead of a limited release to which the mother had agreed, the trial court should have granted the motion to rescind the dismissal under O.C.G.A. § 9-11-60(g); the mother's attorney immediately took steps to correct the mistake, and the mother's insurer, the only party that refused to consent to rescission of the dismissal, was not prejudiced, as allowing the correction would have merely placed it in the position it expected to be in before it realized that the mother's attorney had signed the wrong papers. Sanson v. State Farm Fire & Cas. Co., 276 Ga. App. 555, 623 S.E.2d 743 (2005).
Omission of language from judgment.
- If words, sentences, or paragraphs are omitted from a judgment and there is no factual dispute between the parties about such error or omission, the judgment may be corrected. Park v. Park, 233 Ga. 36, 209 S.E.2d 584 (1974).
Vacation of order entered by misconception or misrepresentation.
- Original order of the court that was entered either by misconception or as a result of a misrepresentation was properly vacated. Hunt v. Household Fin. Corp., 138 Ga. App. 693, 227 S.E.2d 467 (1976).
Amendment of record by reducing oral order to writing.
- Language "amend its own records" in former Code 1933, §§ 24-104 and 81-1202 (see now O.C.G.A. § 15-1-3(6)) included amending the record by reducing to writing an order, which had previously existed only as an oral statement and was therefore not properly a part of the record at all, although it had been recognized as such during the trial of the case. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69, 234 S.E.2d 807 (1977).
Conformance of child support judgment to verdict.
- Because a jury verdict in a divorce action provided for child support at the rate of $100.00 per month until the children reached the age of 21, but the judgment entered on the verdict provided for payment of child support at the rate of $50.00 per month for each minor child, until such child became self-supporting, married, or attained the age of 21, the court was able to order that the judgment be corrected for clerical error to conform to the verdict. Lowe v. Lowe, 243 Ga. 398, 254 S.E.2d 323 (1979).
Vacation and reentry of judgment for appeal purposes when losing party not timely notified of decision.
- Under former Code 1933, §§ 24-2620 and 24-2621 (see now O.C.G.A. § 15-6-21), it was the duty of the judge to file the judge's decision with the clerk of the court and notify the attorney of the losing party of the judge's decision; and if no notice was sent by the court or the clerk to the losing party, an action may be brought under subsection (g) of Ga. L. 1974, p. 1138, § 1 (see now O.C.G.A. § 9-11-60) to set aside the earlier judgment, and upon a finding that notice was not provided as required by former Code 1933, §§ 24-2620 and 24-2621, the motion to set aside may be granted, the judgment reentered, and the 30-day period within which the losing party must appeal would begin to run from the date of the reentry. Cambron v. Canal Ins. Co., 246 Ga. 147, 269 S.E.2d 426 (1980), overruled on other grounds, Wright v. Young, 297 Ga. 683, 777 S.E.2d 475 (2015); Fremichael v. Doe, 221 Ga. App. 698, 472 S.E.2d 440 (1996).
In considering whether the trial court's denial of a motion to set aside was erroneous because a party did not receive notice of the entry of judgment, the issue is not whether the losing party had knowledge that the judgment was entered, but rather whether the duty imposed on the court by O.C.G.A. § 15-6-21(c) was carried out; it is necessary that the trial court first make a finding regarding whether such duty was met and, if not, the earlier judgment must be set aside before judgment is reentered to commence a new 30-day period for appeal. Kendall v. Peach State Mach., Inc., 215 Ga. App. 633, 451 S.E.2d 810 (1994).
In a workers' compensation case, when the trial court did not send the parties the court's judgment as required by O.C.G.A. § 15-6-21(c), the court erred in denying the employer's motion under O.C.G.A. § 9-11-60(g) to vacate and re-enter the judgment so that the employer could file a timely appeal; O.C.G.A. § 34-9-105(b) did not prevent granting of the motion because the trial court had complied with the court's time limitations, and it was improper for the trial court to decide the motion based upon the court's determination that the employer knew or should have known that a judgment had been entered. Wal-Mart Stores, Inc. v. Parker, 283 Ga. App. 708, 642 S.E.2d 387 (2007).
Trial court did not abuse the court's discretion in setting aside a default judgment entered in favor of former police officers under O.C.G.A. § 9-11-60(d) because the default judgment was entered despite the fact that the record disclosed that a pension fund board of trustees timely answered the complaint and, thus, there was no basis upon which to claim a default judgment; the board's answer was filed 31 days after service, but because that day was a Monday and the 30th day after service fell on a Sunday, under O.C.G.A. § 1-3-1(d)(3), the answer was timely. Stamey v. Policemen's Pension Fund Bd. of Trs., 289 Ga. 503, 712 S.E.2d 825 (2011).
Although a bicyclist failed to comply with the trial court's order to notify a driver of a default judgment against the driver for $2.9 million, such failure did not permit the trial court to vacate the judgment under O.C.G.A. § 9-11-60(g) because the trial court had no duty to notify the driver of the judgment, pursuant to O.C.G.A. §§ 9-11-5(a) and15-6-21(c). Winslett v. Guthrie, 326 Ga. App. 747, 755 S.E.2d 287 (2014).
Effect of correction on final order.
- Trial court's corrective action in clarifying an omission as to post-trial interest in the court's earlier partial summary judgment, which had been certified as final, constituted a final order which was directly appealable. Nodvin v. West, 197 Ga. App. 92, 397 S.E.2d 581 (1990).
Judgment changing previously entered order on evidentiary grounds not authorized.
- Court was without authority to enter a nunc pro tunc judgment changing a previously entered order not involving correction of a clerical mistake arising from oversight or omission, but based on a motion to reconsider and set aside final judgment and decree on the ground that certain provisions were not supported by the evidence. Brown v. Brown, 233 Ga. 581, 212 S.E.2d 378 (1975).
Waiver by acceptance of benefits under judgment.
- Wife waived the right to file a motion under subsection (g) of O.C.G.A. § 9-11-60 to correct a divorce judgment by accepting alimony payments and other benefits under the judgment for over two years prior to filing the motion. Fender v. Fender, 249 Ga. 773, 294 S.E.2d 474 (1982).
Court omitting signing of order orally granted.
- If the plaintiff files an amendment to the complaint and a motion to add parties, a proposed (unsigned) order granting the motion is placed in the file at the same time as the motion, a hearing on the motion is held, and the trial court, in the exercise of the court's discretion, orally grants the motion, all within the limitations period, but, through oversight, the court omits the actual signing of the order, the trial court does not err in later entering a nunc pro tunc order so as to correct the court's own oversight and to make the record speak the truth. Savannah Iron & Fence Corp. v. Mitchell, 168 Ga. App. 252, 308 S.E.2d 569 (1983).
Foreign divorce decree.
- Because an action to domesticate a Pennsylvania divorce decree was barred by the five-year statute of limitations in Georgia and, further, there was no authority for a Georgia court to "correct" a domesticated judgment of another state, denial of a summary judgment in favor of a former wife as to the wife's claim for domestication and correction of the decree was proper. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993).
New award of damages not clerical mistake.
- Trial court erred in modifying a judgment to add prejudgment interest after the term of court in which the original judgment was entered as the award of prejudgment interest was the addition of a new award of damages and not a mere correction of a clerical mistake. Capital Cargo, Inc. v. Port of Port Royal, 261 Ga. App. 803, 584 S.E.2d 54 (2003).
No clerical errors found.
- In an objector's appeal from an order enforcing a settlement agreement with a trust administrator, there was no error in denying the objector relief under O.C.G.A. § 9-11-60(g) because the errors alleged by the objector could not in any way be said to be clerical or typographical errors. Head v. Wachovia Bank, N.A., 264 Ga. App. 608, 591 S.E.2d 424 (2003).
Trial court erred by entering a second final decree of divorce pursuant to O.C.G.A. § 9-11-60(g) after the term of court in which the first final decree had been entered had already expired because there were no clerical mistakes made with respect to the first final decree; the alleged mistake by the clerk, if any, related to the clerk's failure to file the husband's premature motion for new trial and had nothing to do with any alleged clerical errors in the first order and, accordingly, the trial court could not "correct" any mistake relating to the handling of the husband's motion for new trial by issuing a "corrected" second order based on a first order that contained no clerical mistakes. Tremble v. Tremble, 288 Ga. 666, 706 S.E.2d 453 (2011).
Orders improperly vacated when requirements were not met.
- Trial court erred in vacating the court's orders denying a trust's temporary restraining order and an executor's motions for a declaratory judgment and for injunctive relief because, when the orders were not void on the orders' face, the O.C.G.A. § 9-11-60 requirements were not met, a party did not file a motion to set aside the orders, the executor did not receive notice of the challenge, and the action was not the correction of a clerical error. Cherry v. Moreton Rolleston, Jr. Living Trust, 273 Ga. App. 876, 616 S.E.2d 157 (2005).
Amount of income intentionally included in divorce decree was not "mistake".
- When a particular amount of income was intentionally inserted into a divorce decree that incorporated a negotiated child support amount, a trial court could not later "correct" the amount, as if it were a clerical mistake, without setting aside the whole judgment. Porter-Martin v. Martin, 280 Ga. 150, 625 S.E.2d 743 (2006).
Law of the Case Rule
Law of the case rule abolished.
- Although an unsuccessful motion for summary judgment by the appellants, a doctor and the doctor's professional corporation, had been based on the statute of repose, O.C.G.A. § 9-3-71(b), and so was their later motion in limine, the fact that the statute of repose issue was decided against them in the ruling on the summary judgment motion did not make the prior ruling the law of the case so as to bar the appellants from raising the same statute of repose issue in their appeal from the denial of their motion in limine as the law of the case rule was statutorily abolished in O.C.G.A. § 9-11-60(h). Eyzaguirre v. Baker, 260 Ga. App. 53, 579 S.E.2d 47 (2003).
Trial court was not bound by an order in which the court previously found that the court lacked jurisdiction over a dispute between neighbors as the law of the case doctrine had been abolished pursuant to O.C.G.A. § 9-11-60(h). Knapp v. Cross, 279 Ga. App. 632, 632 S.E.2d 157 (2006).
Under O.C.G.A. § 9-11-60(h), the law of the case had been abolished and did not bind the trial court to the court's interim ruling ordering the wife of a mortgagor to pay rent into the registry of the court pursuant to O.C.G.A. § 44-7-54(a)(1) during a continuance of the lender's dispossessory action. Harper v. JP Morgan Chase Bank Nat'l Ass'n, 305 Ga. App. 536, 699 S.E.2d 854 (2010).
Judgment is the law of the case until set aside or reversed. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968).
Ruling on motion for new trial as law of case until set aside or reversed.
- If a motion for new trial is filed and ruled upon by the trial court, it establishes the law of the case until set aside or reversed. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968).
Unless prevented by appeal or enumeration of error.
- Losing party may prevent a judgment overruling a motion for new trial from becoming the "law of the case" by appealing directly from such judgment, or by appealing from other appealable judgments and enumerating the error on the overruling of the motion for new trial. Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972).
Failure to appeal from a judgment overruling a motion for new trial or failure to enumerate error thereon will not effect a dismissal of the appeal, but merely concludes the party as to the grounds urged in the motion for new trial. Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972).
Defendants successfully sought an interlocutory appeal from the state court's order striking the defendants' arbitration defense, the state-court judgment was affirmed by the Court of Appeals of Georgia, and the Supreme Court of Georgia denied certiorari, so the judgment was now final for all preclusive purposes. Cmty. State Bank v. Strong, 651 F.3d 1241 (11th Cir. 2011), cert. denied, 568 U.S. 813, 133 S. Ct. 101, 184 L. Ed. 2d 22 (2012).
Law of the case rule still pertains insofar as appellate courts are concerned, if rulings of the trial judge are unexcepted to. State Farm Mut. Auto. Ins. Co. v. Wendler, 120 Ga. App. 839, 172 S.E.2d 360 (1969).
Law of the case rule has formally been abolished except as the rule applies to rulings by one of the appellate courts and those rulings are binding in all subsequent proceedings, including a second trial. Continental Corp. v. DOT, 185 Ga. App. 792, 366 S.E.2d 160, cert. denied, 185 Ga. App. 909, 366 S.E.2d 160 (1988); McLean v. Continental Wingate Co., 222 Ga. App. 805, 476 S.E.2d 83 (1996); In re Spruell, 237 Ga. App. 259, 517 S.E.2d 190 (1999).
"Law of the case rule," as applied in Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968), has been abolished, provided, however, that any ruling by the appellate court in a case shall be binding in all subsequent proceedings in that case in the lower court and in the appellate court. Jebco Ventures, Inc. v. City of Smyrna, 529 Ga. 599, 385 S.E.2d 397 (1989); Security Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 535 S.E.2d 234 (2000).
If the decision of an appellate court becomes "incorrect" because the law changes - either because of subsequent case law or because of later-enacted statutes - it may not be binding precedent for other situations; however, between the parties to the original decision it remains the law of the case. Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 456 S.E.2d 97 (1995).
Court of Appeals holding was the law of the case as between the parties to an action even though the rationale of the holding was thereafter overruled by the Supreme Court in an unrelated case. Dicks v. Zurich Am. Ins. Co., 231 Ga. App. 448, 499 S.E.2d 169 (1998).
Questions decided by appellate court binding as law of case.
- If judgment is reversed by the appellate court, all questions as to pleadings and effect of evidence adjudicated by the appellate court are binding as the law of the case on a second trial, unless additional pleadings and evidence prevail to change such adjudications. Monroe Motor Express v. Jackson, 76 Ga. App. 280, 45 S.E.2d 445 (1947) (decided under former Code 1933).
Because a contempt order was previously affirmed on appeal by the Georgia Court of Appeals, a claim made thereafter that the order was void was rejected as the affirmed order became the law of the case. Rice v. Lost Mt. Homeowners Ass'n, 288 Ga. App. 714, 655 S.E.2d 214 (2007), cert. denied, 2008 Ga. LEXIS 376 (Ga. 2008).
Although the law of the case rule was abolished, the appellate court's finding in an earlier proceeding involving the termination of the mother's parental rights in the mother's three minor children that the children were deprived, the deprivation was caused by lack of parental care and control, and the deprivation was likely to continue was binding on the juvenile court in subsequent proceedings since an exception applied to the abolishment of the law of the case rule that allowed a ruling by the appellate court to be binding on all subsequent proceedings in the lower court. In the Interest of D.F., 261 Ga. App. 148, 582 S.E.2d 16 (2003).
Because an appellate court previously ruled that an insurer was entitled to partial summary judgment on the issue of recoverable damages relating to the assignees' claims against it for failure to settle an underlying case, the amount of recoverable damages on a remanded trial was limited to the policy limits pursuant to the prior decision, and the matter could not be relitigated pursuant to O.C.G.A. § 9-11-60(h). Empire Fire & Marine Ins. Co. v. Driskell, 264 Ga. App. 646, 592 S.E.2d 80 (2003).
Widower could not relitigate claims for compensatory and punitive damages based on the claim that the father-in-law had broken a verbal promise to give the widower a portion of life insurance proceeds to help defray the deceased wife's burial costs as the matter had been previously resolved by summary judgment in favor of the father-in-law, which decision was affirmed on appeal; such a decision was binding, pursuant to O.C.G.A. § 9-11-60(h), in the subsequent trial with respect to whether a promise had been made and broken as to the disposition of the life insurance proceeds, and the widower was barred from raising the issues relating to those damages by the doctrines of collateral estoppel and res judicata, under O.C.G.A. § 9-12-40. Hardwick v. Williams, 272 Ga. App. 680, 613 S.E.2d 215 (2005).
Under principles of both law of the case and judicial estoppel, a defendant could not complain when, after a modified sentence was overturned, the trial court reimposed the sentence originally imposed on the defendant. Williams v. State, 277 Ga. App. 841, 627 S.E.2d 808 (2006).
Affidavit of the plaintiff limited liability company's sole member did not demand summary judgment for the plaintiffs because the evidentiary posture of the case had not changed by the addition of the affidavit given the similarity of the arguments and evidence presented in the current and previous appeals before the appellate court; the affidavit was parol evidence, which a court could not consider unless an ambiguity existed in the contract, and there was no ambiguity in the parties' agreement. IH Riverdale, LLC v. McChesney Capital Partners, LLC, 292 Ga. App. 841, 666 S.E.2d 8 (2008).
In an action regarding an alleged defect in a home's septic system, the home buyers' agent was properly granted summary judgment as to a fraud claim based on the law of the case doctrine under O.C.G.A. § 9-11-60(h) because on a prior interlocutory appeal, the court reversed the trial court's denial of summary judgment to the listing agent, finding justifiable reliance had not been shown as to the fraud claim as no question existed that the buyers were informed through their agent that the septic tank had been pumped twice within a four-month period. Davis v. Silvers, 295 Ga. App. 103, 670 S.E.2d 805 (2008).
Because the Supreme Court of Georgia had already held on certiorari that a defendant's claims challenging the constitutionality of consecutive sentences were properly the subject of a motion to vacate a void sentence, that order constituted the law of the case, and the trial court was not authorized to make any ruling to the contrary, including the court's ruling that the defendant's constitutional challenges were waived. Rooney v. State, 287 Ga. 1, 690 S.E.2d 804, cert. denied, 562 U.S. 854, 131 S. Ct. 117, 178 L. Ed. 2d 72 (2010).
Trial court erred in granting summary judgment in favor of a former clerk and a deputy clerk in an inmate's action alleging that they breached their duty to notify the department of corrections of the inmate's amended sentence as required by O.C.G.A. § 42-5-50(a) because the court of appeals previously ruled in the case that the clerks were not entitled to official immunity in their individual capacities for failing to perform the ministerial act of communicating the inmate's sentence to the DOC, and nothing in the record following remand changed that ruling; § 42-5-50(a) is imperative, and its performance is neither discretionary nor dependent upon a direction from the parties at interest. McGee v. Hicks, 303 Ga. App. 130, 693 S.E.2d 130 (2010), aff'd, 289 Ga. 573, 713 S.E.2d 841 (2011).
Trial court erred in denying the defendant's challenge to the jury traverse on the ground that the court lacked jurisdiction since the defendant was essentially seeking a writ of mandamus because in the court's order transferring the defendant's appeal to the court of appeals, the supreme court held that the matter did not involve a mandamus action brought against a public officer, and instead involved only the denial of a motion in a criminal case, and that transfer order established the rule of the case. MacBeth v. State, 304 Ga. App. 466, 696 S.E.2d 435 (2010).
Trial court did not err in ruling that under the law of the case rule, O.C.G.A. § 9-11-60(h), the defendant's custodial statement could not be used for retrial because the court of appeals had explicitly determined that the custodial statement at issue had been procured in violation of defendant's Sixth Amendment right to counsel, and such determination stood as the law of the case between the parties; because the suppression ruling concerning the defendant's custodial statement had already received interim appellate review, the trial court correctly determined that the issue was governed by the law of the case rule. State v. Stone, 304 Ga. App. 695, 697 S.E.2d 852 (2010).
Appellate court dismissed the defendant's appeal of a trial court's denial of an extraordinary motion for correction of sentence in which the defendant argued that the sentence imposed was void because the appeal was barred by the law of the case doctrine since the appeal involved the exact same subject matter of the defendant's previous appeals. Paradise v. State, 321 Ga. App. 371, 740 S.E.2d 238 (2013).
Parent could not raise various enumerations of error in the parent's appeal of a custody modification decision because the same issues had been raised in the prior appeals. Gilchrist v. Gilchrist, 323 Ga. App. 555, 747 S.E.2d 75 (2013).
State's challenge to the adequacy of nonhearsay evidence to support a trial court's finding that the defendant asserted the right to a speedy trial in due course lacked merit as the appellate court's prior holding that there was significant evidence of the defendant's attempt to obtain a speedy trial remained the law of the case. State v. Takyi, 322 Ga. App. 832, 747 S.E.2d 24 (2013).
In a class action litigation by a facsimile recipient against the sender, the affirmance of the certification of the class, which excluded certain recipients with whom the sender had shown an established business relationship, became the law of the case to which the courts were thereafter bound in further litigation in the matter. Am. Home Servs. v. A Fast Sign Co., 322 Ga. App. 791, 747 S.E.2d 205 (2013).
When the general contractor sought partial summary judgment as to the contractor's claims for liability under the payment and performances bonds and the contractor's surety bad-faith claim, the trial court properly denied the general contractor's motion for partial summary judgment because the general contractor did not show that the evidentiary posture had changed such that the law-of-the-case doctrine did not apply; thus, the appellate court's prior holding that several genuine issues of material fact remained as to the general contractor's claims for liability on the payment and performance bonds was the law of the case. Choate Constr. Co. v. Auto-Owners Ins. Co., 335 Ga. App. 331, 779 S.E.2d 465 (2015).
In a city's action to recover unpaid occupancy taxes from several online travel companies pursuant to O.C.G.A. § 48-13-50 et seq., summary judgment for the companies was proper on the city's breach of constructive trust claim under O.C.G.A. § 53-12-132(a) because, under the law of the case, O.C.G.A. § 9-11-60(h), that claim had been rejected by the trial court and affirmed in a prior appeal. City of Atlanta v. Hotels.com, L.P., 332 Ga. App. 888, 775 S.E.2d 276 (2015).
Because the appellate court's prior opinion determined that the broker was acting as the agent of the insureds when the broker procured the broad horizon aviation insurance policy and accepted delivery of the policy in Atlanta, Georgia, and the insureds did not materially add to the record on the issue that Georgia law, not Delaware law, applied to the case, the law of the case rule precluded the appellate court from revisiting that issue in the current appeal. Lima Delta Co. v. Global Aero., Inc., 338 Ga. App. 40, 789 S.E.2d 230 (2016).
Lender's claim that a borrower could not seek to recover damage to the borrower's credit standing in a wrongful foreclosure claim was foreclosed because, in a prior appeal, the court held that such damage was legally compensable and that holding was the law of the case under O.C.G.A. § 9-11-60(h). Zhong v. PNC Bank, N.A., 345 Ga. App. 135, 812 S.E.2d 514 (2018), cert. denied, No. S18C1034, 2018 Ga. LEXIS 696 (Ga. 2018), cert. denied, No. S18C1032, 2018 Ga. LEXIS 700 (Ga. 2018).
In a dispute over compensation between firefighters and the city, the trial court's March 7, 2017 order was based on a legal conclusion that directly complied with prior appellate precedent; thus, such precedent was the law of the case and binding. Shelnutt v. Mayor & Aldermen of Savannah, 349 Ga. App. 499, 826 S.E.2d 379 (2019).
Given that the appellant obtained an out-of-time appeal, the time was ripe for the trial court to implement the appellate court's prior holding of merging the appellant's convictions for aggravated assault on and felony obstruction of an officer for sentencing purposes because both acts concerned the use of the appellant's hands or fist. Reid v. State, 353 Ga. App. 304, 836 S.E.2d 235 (2019).
Appellate decisions on attorney fees binding.
- As a prior action arising from a real estate contract dispute resolved the issue of attorney fees against an attorney and the attorney's clients pursuant to O.C.G.A. § 9-15-14, that became the law of the case pursuant to O.C.G.A. § 9-11-60(h), such that a second action seeking attorney fees against the attorney was precluded. Fortson v. Hardwick, 297 Ga. App. 603, 677 S.E.2d 784 (2009), cert. denied, No. S09C1447, 2009 Ga. LEXIS 407 (Ga. 2009).
In the appellees' suit to recover attorney fees from appellants, the appellate court's opinion had specified the hours appellees spent on an appeal which the appellants had claimed were fraudulent. As the appellees deleted those challenged hours from the billing they presented to the trial court on remand, there were no issues to be tried; pursuant to O.C.G.A. § 9-11-60(h), the appellate court's prior decision was binding on the trial court as the law of the case. Furthermore, the trial court did not err in striking the appellants' amended answer raising, for the first time, a statute of limitations defense as the prior appellate court ruling was determinative of all claims. Falanga v. Kirschner & Venker, P.C., 298 Ga. App. 672, 680 S.E.2d 419 (2009).
Finding of prejudice in an ineffective assistance of counsel claim binding.
- Trial court erred in finding that the defendant was not entitled to an out-of-time appeal because the defendant had not established ineffective assistance of counsel because a previous appeal had established that the defendant had raised a meritorious merger issue, and this determination was binding on the trial court, and it was undisputed that counsel had failed to inform the defendant of the defendant's appeal rights, establishing deficient performance. Reid v. State, 344 Ga. App. 895, 812 S.E.2d 89 (2018).
Clerk's duty to notify under O.C.G.A. § 42-5-50. - Court of Appeals erred in determining that the law of the case required a finding that a clerk's duty to notify the department of corrections of sentencing orders under O.C.G.A. § 42-5-50 was discretionary rather than ministerial because the Court of Appeals' prior decision did not resolve whether the clerk's acts were discretionary or ministerial but merely recognized that the plaintiff was asserting that the duties were ministerial. Hicks v. McGee, 289 Ga. 573, 713 S.E.2d 841 (2011).
Applicability.
- "Law of the case" rule applies when the same parties and issues are involved and the evidentiary posture of the case remains the same. Bruce v. Garges, 259 Ga. 268, 379 S.E.2d 783 (1989); Dacosta v. Allstate Ins. Co., 199 Ga. App. 292, 404 S.E.2d 627, cert. denied, 199 Ga. App. 905, 404 S.E.2d 627 (1991).
Law of the case is the controlling legal rule established by a previous decision between the same parties in the same case. However, the principle only establishes the law of the case in its then existing evidentiary posture. Lee v. DOT, 198 Ga. App. 716, 402 S.E.2d 551 (1991).
Ruling that in a first trial the court did not err in refusing to direct a verdict or in refusing to grant judgment notwithstanding a mistrial became the law of the case was binding in all subsequent proceedings. Grindle v. Chastain, 229 Ga. App. 386, 493 S.E.2d 714 (1997).
Because the trial court denied the defendant's claim for return of property and the supreme court subsequently affirmed that denial, the latter ruling was binding and, because the defendant could show no change in the evidentiary posture of the case, the defendant was prohibited from relitigating the claim for return of the property. Day v. State, 242 Ga. App. 899, 531 S.E.2d 781 (2000).
Because the trial court had initially granted partial summary judgment to a landlord upholding the landlord's position that the tenant was not entitled to a credit for reconditioning expenses, but it reserved ruling on whether a writ of possession should be granted, and when the tenant appealed that judgment pursuant to O.C.G.A. § 9-11-56(h) but the court dismissed that appeal for failure to comply with O.C.G.A. § 44-7-56, the landlord's subsequent appeal from the final order granting a writ of possession to the landlord was dismissed to the extent that the landlord sought to relitigate the identical issues that the tenant attempted to litigate in the first appeal under O.C.G.A. § 9-11-56(h), and the prior appellate ruling was binding on the court under the law of the case rule, O.C.G.A. § 9-11-60 (h). Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004).
Testimony, in the defendant's second murder trial, given by two witnesses who had been jurors in the defendant's first murder trial, that the jurors heard the defendant make an admission of guilt while exiting the courtroom during the first trial, did not violate the law of the case rule, despite the fact that a footnote in a prior appellate opinion mentioned that the record indicated that the jury had exited the courtroom before the defendant made the statement; the footnote was not a "ruling" so as to have been binding in subsequent proceedings. Slakman v. State, 280 Ga. 837, 632 S.E.2d 378 (2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167 L. Ed. 2d 95 (2007).
Because the law of the case doctrine did not apply to issues not previously ruled upon below, enumerated as error on appeal, or discussed in a prior appellate decision, the trial court erred in denying summary judgment to a boat's charterer, and partial summary judgment to both the charterer and the boat's owner, in an action arising out of injuries sustained by a longshoreman while on board a cargo ship as the law of the case rule did not preclude consideration of the charterer's status and the issue of whether both were liable under the International Safety Management Code as such were not previously addressed by the trial court. Eastern Car Liner, Ltd. v. Kyles, 280 Ga. App. 362, 634 S.E.2d 129 (2006).
In a dispute between adjoining landowners over title to approximately six acres of land, the Supreme Court of Georgia's prior finding that the deeds relied upon by the appellant neighbors to convey the property to a third party were insufficient as a matter of law, was binding as the law of the case under O.C.G.A. § 9-11-60(h), and no amount of new evidence could change the court's holding that the deeds bore an insufficient description of the property to be conveyed as such was a question of law unaffected by circumstances extrinsic to the deeds themselves. Pirkle v. Turner, 281 Ga. 846, 642 S.E.2d 849 (2007).
Because the trial court, in a prior injunction proceeding, rejected a landowner's claim to a prescriptive right to maintain a garage encroachment by virtue of having received permission to build the garage and having erected the garage three years prior to the lawsuit, the claim was barred in a later proceeding as the law of the case; moreover, the landowner was prohibited from changing the evidentiary posture of the case merely by changing testimony as to when the garage was built after summary judgment was already granted on the issue. Daiss v. Bennett, 286 Ga. App. 108, 648 S.E.2d 462 (2007).
Law of the case rule of O.C.G.A. § 9-11-60(h) did not prevent a court from deciding the issue of a county's entitlement to sovereign immunity because in an earlier appellate decision the court had not considered the issue of sovereign immunity. DeKalb State Court Prob. Dep't v. Currid, 287 Ga. App. 649, 653 S.E.2d 90 (2007), aff'd, Currid v. DeKalb State Court Prob. Dep't, 285 Ga. 184, 674 S.E.2d 894 (2009).
Former employer did not expand the evidentiary record in the trial court by submitting an affidavit in support of a second motion to set aside a default judgment after the appellate court entered an order denying the employer's application for discretionary appeal from the denial of a first motion but instead submitted the affidavit one month prior to the appellate court's denial; thus, the law of the case rule under O.C.G.A. § 9-11-60(h) applied and the trial court improperly granted the second motion. Guthrie v. Wickes, 295 Ga. App. 892, 673 S.E.2d 523 (2009).
Because the appellate court, in a wrongful death action against a county, did not directly address whether the Community Service Act, O.C.G.A. § 42-8-70 et seq., waived sovereign immunity but instead focused on the issue of gross negligence on a prior appeal, the law of the case rule of O.C.G.A. § 9-11-60(h) could not be expanded to encompass an implied ruling on an implied finding of a waiver of sovereign immunity. Currid v. DeKalb State Court Prob. Dep't, 285 Ga. 184, 674 S.E.2d 894 (2009).
Denial of practice groups' motion to dismiss the parents' medical malpractice action based on the parents' failure to comply with the expert affidavit requirement of former O.C.G.A. § 9-11-9.1 was error because a prior appellate decision concluded that, at the time the litigation was brought, the question of whether a plaintiff was subject to the expert affidavit requirement depended not on the identity of the defendant, but on the cause of action, and explicitly held that, without an expert affidavit, the parents could have sustained only an ordinary negligence claim; the trial court's ruling, which held that because the practice groups were not licensed professionals or licensed health care facilities, no expert affidavit was needed, violated the law of the case. The parents could not have successfully argued on the appeal that the parents' malpractice claims were exempt from the expert affidavit requirement. Atlanta Women's Health Group, P.C. v. Clemons, 299 Ga. App. 102, 681 S.E.2d 754 (2009).
Standing orders with regard to subsequent proceedings.
- Subsection (h) of O.C.G.A. § 9-11-60 has abolished the law of the case, but does not accommodate the view that a standing order can be ignored with regard to subsequent proceedings. If the order has been ratified by an appellate court, it must be treated with due deference. However, if the order is merely interlocutory in character, it remains within the breast of the trial court even after the expiration of the term. Barber v. Collins, 201 Ga. App. 104, 410 S.E.2d 444 (1991).
Statement constituting obiter dictum not binding.
- Statement of an appellate court on a motion for rehearing that was not a binding holding of the court and was obiter dictum as it was not necessary to the decision, was not binding on the lower courts as the law of the case. Browning v. Europa Hair, Inc., 145 Ga. App. 361, 243 S.E.2d 742 (1978).
Affirmance without opinion.
- Although the Supreme Court of Georgia's affirmance without opinion of a trial court decision had no precedential value, it still established the law of the case. Moreton Rolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541, 591 S.E.2d 834, cert. denied, 541 U.S. 1042, 124 S. Ct. 2168, 158 L. Ed. 2d 732 (2004).
Finality of reversal by appellate court.
- If a trial court, after hearing a motion to set aside a prior order in a pending case, vacates the judgment complained of and on appeal the trial court's decision is reversed without direction, the judgment of the appellate court is final; upon the filing of the remittitur in the trial court, the issue is res judicata, and the lower court has no authority to allow the movant to amend the movant's motion, nor hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of the appellate court. Shepherd v. Shepherd, 243 Ga. 253, 253 S.E.2d 696 (1979).
Finality of affirmance of summary judgment.
- Because the trial court had previously granted summary judgment on a conversion claim, and that summary judgment was affirmed on appeal, the decision on appeal was binding and the plaintiff could not replead the claim. Faircloth v. A.L. Williams & Assocs., 219 Ga. App. 560, 465 S.E.2d 722 (1995).
Not sole remedy in conversion action.
- In a conversion action brought by a vehicle owner against the owner of a towing company, there was no merit to the towing company owner's argument that O.C.G.A. § 9-11-60(d) was the exclusive vehicle by which the vehicle owner, who was not a party to the foreclosure proceedings involving the vehicle, was entitled to seek relief. Thus, the trial court did not lack jurisdiction to consider the conversion action. Horner v. Robinson, 299 Ga. App. 327, 682 S.E.2d 578 (2009).
Law of the case established by Court of Appeals.
- Superior court should follow the law of the case as established by the Court of Appeals in conducting the jury trial. Westinghouse Elec. Corp. v. Rider, 168 Ga. App. 136, 308 S.E.2d 378 (1983).
Absent a change in the evidentiary posture, the rulings of the Court of Appeals are binding on the trial court in all subsequent proceedings in the case and may not be disregarded. Eastgate Assocs. v. Piggly Wiggly S., Inc., 200 Ga. App. 872, 410 S.E.2d 129, cert. denied, 200 Ga. App. 896, 410 S.E.2d 129 (1991).
If the Court of Appeals holds that the appellant's allegations are either without merit or not applicable to the circumstances in the case, this becomes the law of the case. Blake v. Continental S.E. Lines, 168 Ga. App. 718, 309 S.E.2d 829 (1983).
Direction of the Court of Appeals upon remand of a forfeiture proceeding requiring the trial court to determine whether the forfeiture violated the constitutional prohibition against excessive fines was mandatory and the trial court had no discretion to refuse to comply with the direction. Rabern v. State, 231 Ga. App. 84, 497 S.E.2d 631 (1998).
Relitigation of sanctions following remand.
- Because the issue of a nonnoticing defendant's entitlement to sanctions for the plaintiffs' failure to appear for depositions was at least incidentally involved in the case and served as the basis for ordering a remand, rather than outright reversal, statements by the Court of Appeals on that issue were not dicta, but the law of the case. South Ga. Medical Ctr. v. Washington, 269 Ga. 366, 497 S.E.2d 793 (1998).
Trial court properly ruled that an attempt to relitigate sanctionability of the conduct was beyond the scope of the remand directive and thus barred by the law of the case rule. Harkleroad v. Stringer, 231 Ga. App. 464, 499 S.E.2d 379 (1998).
Transfer to Court of Appeals conclusive as to existence of constitutional questions.
- Transfer by the Supreme Court to the Court of Appeals of a case that questions the constitutionality of a statute is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious. Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975).
Holding on validity of ordinance.
- If the validity of a city ordinance is challenged and on review by the Supreme Court of a judgment on demurrer the court holds that the ordinance is valid, the law of the case is thus fixed, and amended pleadings thereafter cannot again raise that question. Medlock v. Allison, 224 Ga. 648, 164 S.E.2d 112 (1968).
Holding that no verdict demanded by evidence.
- Because the Court of Appeals, in considering a motion for new trial after the first trial of a case, held that the evidence did not demand a verdict for either party, such ruling was the law of the case. Goodyear Tire & Rubber Co. v. Johnson, 120 Ga. App. 395, 170 S.E.2d 869 (1969).
Prior erroneous reason for dismissal cannot be treated as binding under O.C.G.A. § 9-11-60 pursuant to the law of the case rule. Davis v. South Carolina Ins. Co., 143 Ga. App. 782, 240 S.E.2d 191 (1977).
Effect of expansion of evidentiary record.
- Defendant's submission of affidavits after a denial of summary judgment was affirmed served to expand the evidentiary record; thus, consideration as to whether the new evidence demanded summary judgment for the defendant was required. Brown v. Piggly Wiggly S., Inc., 228 Ga. App. 629, 493 S.E.2d 196 (1997).
Change in evidentiary posture of case.
- Father could collaterally attack the validity of an order that modified custody as a defense to the wife's contempt motion since the evidentiary posture of the case has changed in view of subsequent rulings by the Alabama courts demonstrating that Alabama had retained jurisdiction over the custody of the child at issue. Henderson v. Justice, 237 Ga. App. 284, 514 S.E.2d 713 (1999).
Despite the Georgia Supreme Court previously suggesting the ex-husband could be assessed for damages and repairs to the rental property, such a remedy could no longer serve the purpose of civil contempt to obtain future compliance with the divorce decree since the rental property was foreclosed upon and sold; thus, future compliance was no longer at issue and the trial court was authorized to impose unconditional criminal punishment for the ex-husband's prior acts of contumacy. Sponsler v. Sponsler, 353 Ga. App. 627, 838 S.E.2d 921 (2020).
Inapplicability to issues not earlier decided.
- Law of the case rule is in no way dispositive of or even applicable to an issue that was not addressed in the earlier decision. Modern Roofing & Metal Works, Inc. v. Owen, 174 Ga. App. 875, 332 S.E.2d 14 (1985); Parks v. State Farm Gen. Ins. Co., 238 Ga. App. 814, 520 S.E.2d 494 (1999).
Res judicata.
- Because the state relied upon a former judgment which fully adjudicated the issue made by the appellants and that judgment had neither been reversed nor modified by any exception that the appellants had taken to it, such unreversed and unmodified judgment was res judicata as between the same two parties and thus was the law of the case. Camp v. State, 181 Ga. App. 714, 353 S.E.2d 832 (1987).
Trial court erred in granting a limited liability company summary judgment in the company's ejectment action against a property owner on the ground of res judicata under O.C.G.A. § 9-12-40 because there remained a question of fact regarding whether the owner was a party to the prior action; the owner asserted and presented affidavit evidence supporting the claim that the trial court in the quiet title action lacked personal jurisdiction over the owner, thus creating a genuine issue of material fact regarding whether the owner was a party to the earlier litigation. James v. Intown Ventures, LLC, 290 Ga. 813, 725 S.E.2d 213 (2012).
If a grant of partial summary judgment is not made final under O.C.G.A. § 9-11-54(b), the party against whom summary judgment was granted has the option to either appeal or not appeal at that time, and if the party chooses to appeal, then the appellate decision on the summary judgment ruling is binding under subsection (h) of O.C.G.A. § 9-11-60. Roth v. Gulf Atl. Media of Ga., Inc., 244 Ga. App. 677, 536 S.E.2d 577 (2000).
Appellant's allegations without merit or inapplicable.
- If the Court of Appeals holds that the appellant's allegations are either without merit or not applicable to the circumstances in the case, this becomes the law of the case. Blake v. Continental S.E. Lines, 168 Ga. App. 718, 309 S.E.2d 829 (1983).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Judgments, § 655 et seq. 58 Am. Jur. 2d, New Trial, §§ 13, 14, 37 et seq.
15 Am. Jur. Pleading and Practice Forms, Judgments, § 291. 18B Am. Jur. Pleading and Practice Forms, New Trial, § 8.
C.J.S.- 35B C.J.S., Federal Civil Procedure, § 1248 et seq. 49 C.J.S., Judgments, §§ 352 et seq., 710 et seq.
ALR.
- Collateral attack on judgment by party at whose instance it is entered, 3 A.L.R. 535.
Failure of affidavit for publication of summons to state the facts required by statute as subjecting the judgment to collateral attack, 25 A.L.R. 1258.
Nonresidence of one or both parties as affecting jurisdiction of court of suit proceeding to annul divorce decree rendered in same state, 33 A.L.R. 469.
Mental incompetency at the time of rendition of judgment in civil action as ground of attack upon it, 34 A.L.R. 221; 140 A.L.R. 1336.
Meritorious defense as a condition of injunction against judgment for want of jurisdiction, 39 A.L.R. 414; 118 A.L.R. 1498.
Attacking decree of divorce after death of one of the parties on grounds other than original lack of jurisdiction, 40 A.L.R. 1118.
Fraud or perjury in misrepresenting status or relationship essential to the judgment as ground of relief from, or injunction against, judgment, 49 A.L.R. 1219.
Right to writ of coram nobis as affected by intentional or negligent failure to bring facts to attention of court, 58 A.L.R. 1286.
Incompetency, negligence, illness, or the like, of counsel, as a ground for new trial or reversal in criminal case, 64 A.L.R. 436.
Decree or order directing or confirming sale of homestead for payment of debts as subject to collateral attack, 66 A.L.R. 926.
Correcting clerical errors in judgments, 67 A.L.R. 828; 126 A.L.R. 956; 126 A.L.R. 956.
Reliance of attorney on agreement or supposed agreement of opposing attorney to give notice when case was set for trial as ground for relief from judgment, 69 A.L.R. 1336.
Attack on domestic judgment on ground of unauthorized appearance for defendant by attorney, 88 A.L.R. 12.
Criterion of extrinsic fraud as distinguished from intrinsic fraud, as regards relief from judgment on ground of fraud, 88 A.L.R. 1201.
Collateral attack on divorce decree because of defects in showing or allegations as to constructive service of process, 91 A.L.R. 225.
Attack on judgment because of invalidity of contract on which it was rendered, 95 A.L.R. 1267.
Judgment debtor's right to restitution upon reversal or vacation of judgment as subject to setoff in favor of judgment creditor, 101 A.L.R. 1148.
Nonparty who acquires interest in property pending action or after judgment as within benefit of statute or rule providing for opening, vacating, or setting aside of judgments, 104 A.L.R. 697.
Judgment (or final order) affecting title or interest in real property as subject to collateral attack because of insufficiency of description in the pleadings, 111 A.L.R. 1200.
Retention of jurisdiction in suit in equity to determine whole controversy, including amount of loss or damage, after setting aside an award or finding by arbitrators or appraisers, 112 A.L.R. 9.
Right of nonparties to move for the vacation of a judgment and to intervene in action or proceeding in respect of a matter in which they have an interest common with or similar to that of the parties, 112 A.L.R. 434.
Time within which application to reopen or set aside a judgment by confession under warrant of attorney may be made, 112 A.L.R. 797.
Verdict which finds for party upon his cause of action or counterclaim for money judgment, but which does not state amount of recovery, or is indefinite in this regard, or which affirmatively states that he is entitled to no amount, 116 A.L.R. 828; 49 A.L.R.2d 1328.
Judgment or order in connection with appointment of executor or administrator as res judicata, as law of the case, or as evidence, on questions other than the validity of the appointment, 119 A.L.R. 594.
Secreting witness or other conduct preventing summoning or appearance of witness as ground for relief from judgment, 131 A.L.R. 1519.
Power to open or modify 'consent' judgment, 139 A.L.R. 421.
Character, as direct or collateral attack, of action to set aside judgment, as affected by prayer for relief in respect of execution or other proceeding to enforce it, 140 A.L.R. 823.
Power of lower court to set aside, on ground of fraud, judgment entered pursuant to mandate of, affirmed by, reviewing court, 146 A.L.R. 1230.
Res judicata as affected by limitation of jurisdiction of court which rendered judgment, 147 A.L.R. 196; 83 A.L.R.2d 977.
Attorney's representation of parties adversely interested as affecting judgment or estoppel in respect thereof, 154 A.L.R. 501.
Lapse of time as bar to action or proceeding for relief in respect of void judgment, 154 A.L.R. 818.
Relief from stipulations, 161 A.L.R. 1161.
Constructive service of process in action against nonresident to set aside judgment, 163 A.L.R. 504.
Misinformation by judge or clerk of court as to status of case or time of trial or hearing as ground for relief from judgment, 164 A.L.R. 537.
Validity and effect of judgment based upon erroneous view as to constitutionality or validity of a statute or ordinance going to the merits, 167 A.L.R. 517.
Power of court to vacate or modify its judgment or order after expiration of prescribed period upon application made within that period, 168 A.L.R. 204.
Notice contemplated by statute for relief from judgment upon application within specified time after notice, 171 A.L.R. 253.
Remedy and procedure to avoid release or satisfaction of judgment, 9 A.L.R.2d 553.
Necessity of notice of application or intention to correct error in judgment entry, 14 A.L.R.2d 224.
Conditioning the setting aside of judgment or grant of new trial on payment of opposing attorney's fees, 21 A.L.R.2d 863.
Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 A.L.R.2d 852.
Motion to vacate judgment or order as constituting general appearance, 31 A.L.R.2d 262.
Vacation or setting aside of judgment as to one or more of multiple parties against whom rendered as requiring its vacation as to all, 42 A.L.R.2d 1030.
New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.
Verdict for money judgment which finds for party for ambiguous or no amount, 49 A.L.R.2d 1328.
Judgment ambiguous or silent as to amount of recovery as defective for lack of certainty, 55 A.L.R.2d 723.
Contact or communication between juror and outsider during trial of civil case as ground for mistrial, new trial, or reversal, 64 A.L.R.2d 158.
Collateral attack on domestic nunc pro tunc judgment, 70 A.L.R.2d 1131.
Appealability of order vacating, or refusing to vacate, approval of settlement of infant's tort claim, 77 A.L.R.2d 801.
Appealability of void judgment or of one granting or denying motion for vacation thereof, 81 A.L.R.2d 537.
Res judicata as affected by limitation of jurisdiction of court which rendered judgment, 83 A.L.R.2d 977.
Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92 A.L.R.2d 813.
Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788.
Consent as ground of vacating judgment, or granting new trial, in civil case, after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191.
Necessity of taking proof as to liability against defaulting defendant, 8 A.L.R.3d 1070.
Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255.
Liability insurer's right to open or set aside, or contest matters relating to merits of, judgment against insured, entered in action in which insurer did not appear or defend, 27 A.L.R.3d 350.
Amendment, after expiration of time for filing motion for new trial in civil case, of motion made in due time, 69 A.L.R.3d 845.
Right to a jury trial on motion to vacate judgment, 75 A.L.R.3d 894.
Fraud in obtaining or maintaining default judgment as ground for vacating or setting aside in state courts, 78 A.L.R.3d 150.
Wills: challenge in collateral proceeding to decree admitting will to probate, on ground of fraud inducing complainant not to resist probate, 84 A.L.R.3d 1119.
Vacating or setting aside divorce decree after remarriage of party, 17 A.L.R.4th 1153.
Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323.
Computation of net "loss" for which fidelity insurer is liable, 5 A.L.R.5th 132.
Amendment of record of judgment in state civil case to correct judicial errors and omissions, 50 A.L.R.5th 653.
Power of successor judge taking office during term time to vacate, set aside, or annul judgment entered by his or her predecessor, 51 A.L.R.5th 747.
Vacating or opening judgment by confession on ground of fraud, illegality, or mistake, 91 A.L.R.5th 485.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - general principles, 86 A.L.R.6th 321.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - negligence and intentional tort cases, 87 A.L.R.6th 197.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - real estate and construction-related cases, 88 A.L.R.6th 385.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - business-related, corporate, and contract cases, 89 A.L.R.6th 409.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - probate and family law cases, 90 A.L.R.6th 451.
Construction and application of state rules of civil procedure authorizing relief from final judgment or order for "any other reason" - employment, insurance, workers' compensation, and other and unspecified cases, 91 A.L.R.6th 171.