C & S NATIONAL BANK v. Burden

244 S.E.2d 244, 145 Ga. App. 402, 1978 Ga. App. LEXIS 1999

• Court: Court of Appeals of Georgia
• Decided: February 24, 1978
• Docket: 55165
• Status: Published

Opinions

Quillian, Presiding Judge.

This is an appeal via the interlocutory route from an order of the trial court vacating its earlier order granting C & S’ motion for summary judgment.

Plaintiff, C & S National Bank, brought an action on a note executed by defendants, Jack and Suzanne Burden. After the note went into default, demand was made under Code Ann. § 20-506 (Ga. L. 1890-1891, p. 221; as amended through 1968, p. 317). No further payments were received and plaintiff filed this action on April 8,1975. In August, 1975, plaintiff moved for summary judgment. After oral hearing, during the 1976 March term of the State Court of Clayton County, plaintiffs motion was granted and filed, effective March 18, 1976. Thereafter, on April 12, 1976, during the April term, defendants filed a "Motion for Reconsideration.” An oral hearing was held May 28,1976, during the May term, and the court announced it would enter an order vacating plaintiffs summary judgment. Because no order was entered during 1976, on May 6, 1977, plaintiff filed a motion to vacate and set aside the stay order. The court denied this motion and entered an order dated and filed August 26, 1977, setting aside the summary judgment order of March 18, 1976. Plaintiff brings this interlocutory appeal. Held:

1. "A trial judge has the power during the same term of court at which a judgment is rendered to revise, correct, revoke, modify, or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of a sound legal discretion.” Tyler v. Eubanks, 207 Ga. 46 (1) (60 SE2d 130); Martin v. General Motors Corp., 226 Ga. 860, 862 (178 SE2d 183). Furthermore, "[t]he rule as to the power of the trial court to change its judgment during the term in which it is rendered is an inherent power unchanged by the CPA.” Ammons v. Bolick, 233 Ga. 324 (1) (210 SE2d 796). However, the trial court’s authority to change its judgment ended with the term in which it was rendered. City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489); Holloman v. Holloman, 228 Ga. 246 (2) (184 SE2d 653); Ammons v. Bolick, 233 Ga. 324, 325, supra. Accordingly, the court was without authority to change its judgment.

2. Code Ann. § 81A-160 (CPA § 60; Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240; 1974, p. 1138) provides the exclusive methods by which civil judgments may be attacked. Johnson v. Cook, 130 Ga. App. 575 (3) (203 SE2d 882); Henry v. Polar Rock Development Corp., 143 Ga. App. 189 (1) (237 SE2d 667). It provides, generally, for a collateral attack in any court by any person where a judgment is void on its 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. Code Ann. § 81A-160 (a) and (b), supra. Defendant’s "Motion for Reconsideration” is not one of those enumerated. However, we will not judge a motion by its nomenclature but by its content and action requested. Frost v. Frost, 235 Ga. 672, 674 (221 SE2d 567).

Argued January 12, 1978 Decided February 24, 1978 Rehearing denied March 23,1978 — Cert, applied for.

The basis set forth in defendant’s motion was that the judge orally advised counsel for defendants that he would deny the plaintiffs motion and that the order "as drafted by counsel for Plaintiff is contrary to the principles of law applicable to the case.”

There is no contention that this is a judgment void on its face which would permit a collateral attack. Of the remaining remedies, this proceeding was in the state court and can not be a complaint in equity. A motion for new trial is not authorized to re-examine the grant of summary judgment. Shine v. Sportservice Corp., 140 Ga. App. 355 (231 SE2d 130). Therefore, based upon the content and action requested, defendant’s motion is considered to be in the nature of a motion to set aside the earlier judgment. Thus, it must be predicated upon "some nonamendable defect which does appear upon the face of the record or pleadings.” Code Ann. § 81A-160 (d), supra. In this particular it fails. The alleged defects do not appear upon the face of the record or pleadings and can only be reached by going behind the face of the record. Northern Freight Lines v. Fireman’s Fund Ins. Cos., 121 Ga. App. 786, 787 (175 SE2d 104). This is not permissible. Accordingly the trial court erred in reconsidering its earlier judgment.

3. This interlocutory appeal, which is in the nature of certiorari, was granted upon the issue of lack of authority of the trial court to reconsider and revoke its earlier judgment rendered in the previous term. The appellant has added additional enumerations of error. They are not properly before this court as the grant did not encompass them and we will not consider them. Brooks Shoe Mfg., Inc. v. Byrd, 144 Ga. App. 431 (6).

Judgment reversed.

Webb and McMurray, JJ., concur. Alston, Miller & Gaines, Frank J. Beltran, for appellant. Kemper, Baker & Boswell, Joseph R. Baker, for appellees.